text:
    National Liberty Insurance Company v. Spharler.
    Opinion delivered January 24, 1927.
    1. Insurance — warranty clauses — substantial compliance.— Under Crawford & Moses’ Dig., § 6148, a substantial compliance with the fireproof iron safe and the unconditional ownership clauses of a fire insurance policy is sufficient.
    2. Insurance — iron safe clause. — Evidence held to show substantial compliance with the fireproof iron safe clause in a fire insurance policy where the insured’s books were kept in an iron file lined with asbestos, if any ordinarily prudent person under like circumstances would have believed that it was fireproof.
    3. Insurance — sole and unconditional ownership. — The sole and unconditional ownership of property, for the purposes of insurance, is in those upon whom the loss insured against would certainly fall, not as a matter of mere contract obligation, but as the result of real bona fide rights in the property insured.
    4. Insurance — sole and unconditional ownership. — A condition in a policy of fire insurance that insured is the sole and unconditional owner of the property is substantially complied with where, of personal property insured for $2,100, a single item was subject to the vendor’s reservation of title on which $20 was due, especially in view of the fact that insured did not know that the seller retained title.
    5. Appeal and error — instruction—harmless error. — Where undisputed proof showed that the insured was entitled to recover on a fire policy, the giving of an erroneous instruction on the question of plaintiff’s unconditional ownership was not prejudicial.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      McMillen <& Scott, for appellant.

      Roivell & Alexander, for appellee.
   Mehaeey, J.

The appellees filed suit in the Jefferson County Circuit Court, alleging, among other things, that, on the 5th day of .December, 1924, defendant executed and delivered to the plaintiff, Herbert S. Spharler, its policy of insurance for the sum of $2,100, wherein it agreed to insure the plaintiff for the space of one year from date, against loss or damage by fire, to the personal property located in building known as 2402 West 13th Avenue, Pine Bluff, Arkansas; $1,200 was on the general stock of merchandise, $800 on the store and office furniture and fixtures, etc., and $100 on household goods. That the plaintiff paid the defendant a premium of $57.96; that the policy was a regular standard form. That, on December 26, 1924, the property was destroyed by fire; that plaintiff complied with the terms of the policy with reference to notice and proof of loss; that plaintiff, after the fire, had assigned his interest to H. H. Ferguson, trustee.

The answer admits the issuance of the policy; that it was a regular standard form; denies that the property was totally destroyed, and denies that plaintiff complied with the terms of the policy with reference to the notice or proof of loss. Defendant pleads especially the record warranty clause, and states that the plaintiff had not complied with the clauses mentioned in its answer.

The appellant, in its brief, says:

“We will discuss the issues raised on this appeal under the following heads:
“1. Was the. assured required to comply with the record warranty clause in the policy?
“2. Was there a waiver of the sale and unconditional ownership clause in the policy?”

No other questions are argued in appellant’s brief, except the appellant complains of instruction No. 3, requested by plaintiff and given by the court.

In determining the question as to whether the assured complied with the record warranty clause in the policy, it is important to keep in mind that a strict compliance is not required, but the statute itself provides that proof of a substantial compliance with the terms and conditions shall be deemed sufficient and entitle the plaintiff to recover in any such action.

The undisputed proof in the case shows that Mr. Tracy Mills, who had been in the insurance business for twenty-five years, went to plaintiff’s place of business for the purpose of getting plaintiff to take insurance. Mr. Mills went back a second time and looked around, went into the feed-room, looked the stock over, asked and was told what it averaged. Plaintiff said: “After looking the stock over and talking with me, he said $2,100 would be all he could write, and I told him the place would run much more than that.” Mr. Mills, the experienced insurance agent, had made two trips to the place of business, had looked over the property to be insured, himself, and of course looked over it for the purpose of determining its value and how much insurance he could write, and then concluded, not from any representations made by the plaintiff, but from the examination of the stock himself, that he would insure it for $2,100. The proof also shows that the National Credit File was made of some kind of heavy iron, lined with asbestos, guaranteed to keep any set of books. It was purchased by the plaintiff with the understanding and belief that it was fireproof. While Mr. Mills, the insurance agent, says in his testimony that it was not, he also says that it might be called a fireproof safe, just as some light safe might be called fireproof. The testimony shows that plaintiff’s safe or file was made of heavy iron and lined with asbestos. Fireproof does not mean that the safe would resist heat of any particular duration, but it means, at best, that it is constructed of fireproof materials, such as iron, lined with asbestos, as in this case. The insurance agent who sought and obtained the contract of insurance, as we have already said, inspected the goods to be insured on two different occasions. He was in the business, and had been for twenty-five years. The assured, of course, knew nothing about insurance. He made an honest effort to comply with the terms of the policy. He used a safe or file made of iron and lined with asbestos. He thought it was fireproof, and any ordinary person would have believed that it was a fireproof safe in the meaning of the policy. The testimony in this case shows that there was a substantial compliance with this provision of the policy. A substantial compliance is all that would be required, even without our statute, but the statute expressly provides that a substantial compliance only-.is necessary. Crawford & Moses’ Digest, § 6148.

Not only that, but.the insurance agent inspected the stock and everything he insured, and he evidently knew what sort of safe he had. Plaintiff testified that he kept a merchandise account, a list of his cash sales, and kept them in the National Credit Pile. He also testified that he kept his charge tickets in the same file; that this file is so constructed that you can keep a general set of books in it, and it is sold generally for that purpose.

Keeping the books in a fireproof safe or some secure place does not necessarily mean a place absolutely secure against fire, and, where the assured selects a place to keep his books and acts in good faith, and with such care as prudent men would exercise under like circumstances, this clause in the policy is not violated. A fireproof safe is one which is within the fair meaning of this clause if it is such as is commonly used, and such as, in the judgment of prudent men in the locality of the property insured, is sufficient, as it cannot be intended that an absolutely perfect safe shall be kept. In this case there was a substantial compliance with the record warranty clause, and, in addition to this, the insurance company’s agent was present on two occasions and examined the property, and fixed the value of the property himself, and the policy was afterwards written and delivered to the assured. The assured never saw the policy, he states, until after he had signed the papers..

The appellant contends, in the second place, that there was no waiver of the sole and unconditional ownership clause in the policy. This court has several times held that this, provision in the policy is valid, but, like the record warranty clause, a strict compliance is not required, only a substantial compliance.

“The just and reasonable purpose in requiring the insured to have the unconditional and sole ownership of the property insured is to give protection only to those upon whom the loss insured against would inevitably fall but for the insurance, and to avoid taking risks for those whose lack of interest or whose contingent interest in the property insured might tend to encourage carelessness or wrongdoing in the nse or preservation of the property. By fair construction and intendment the ‘unconditional and sole ownership’ of property for the purposes of insurance is in those upon whom the loss insured against would certainly fall, not as a matter of mere contract obligation, but as the result of real bona fide rights in the property insured. ’ ’ 14 Ruling Case Law, p. 1052.

This court has held that, in case of conditional sale of personal property in which the title is reserved in the vendor until the purchase price has been fully paid, the vendee is not considered the sole and unconditional owner, although he would be liable for the price in the event of the loss of the property. Some authorities hold that the vendee in possession is the sole and unconditional owner in the sense of the provision in the policy, since, if destroyed by fire, the loss would fall on the vendee and not on the vendor, but, even taking the view that the vendor is the owner, and that the vendee is not the sole and unconditional owner, still we think the provision in the policy in this case was substantially complied with. When the insurance company, in response to plaintiff’s motion to make its answer in this particular more specific, filed an amendment to its answer, it stated, “the plaintiff was not the sole and unconditional owner of the following property, included in his proof of loss, to wit: National Cash Register, National Credit File, Stimson Scales, Toledo Scale's, 'bedstead and springs, 4 chairs, window curtains and shades, mattress and bed.” Now, except those items, there is no contention that the plaintiff was not the sole and unconditional owner, and the undisputed proof shows that he was the sole and unconditional owner of most of the articles mentioned in defendant’s amendment to its answer. The plaintiff, when the insurance contract was made, did not know that he was not the sole and unconditional owner of the others. The agent of the furniture company testified that the furniture company had a contract-retaining title, but that there was only a balance of $20.85 due. The plaintiff knew he owed the furniture company something, but did not understand' that the company retained title. There seems to be no question about the title to any other property, except the cash register. There was no controversy about the value of the property. The value of the property is shown by the proof at something over $3,000, and we think it would be unreasonable to hold that, when an insurance company writes a policy insuring a stock of merchándise and fixtures, the policy would be void because there might be one or two articles in the store which the assured had bought on conditional sale, the vendor retaining title, and especially in view of the fact that the assured did not know that the seller retained title. The insurance agent inspected all the stock and had an opportunity to know about it.

The object of the stipulation in the policy with reference to sole and unconditional ownership is to protect the company against taking risks on property for an amount disproportionate to the value of the interest of - the insured.

Since, under the statute, strict compliance is not required, the unintentional error as to a very small portion of the property, as we have said, does not make the policy void. In this case there is no charge or evidence of any fraud or intention to deceive, but the only thing complained of, under this clause of the policy, is that there were one or two articles in.the store to which the seller had retained title, and even this, it seems, was not known to the plaintiff.

The only other contention of appellant is that plaintiff’s instruction No. 3, given by the court, was erroneous. Since'we have held that there was a substantial compliance with the provision of the policy with reference to the sole and unconditional ownership clause of the policy, and the undisputed proof showing that the plaintiff is entitled to recover, the giving of an erroneous instruction by the court on the question of unconditional ownership was not prejudicial error. ' It therefore follows that the case must be affirmed.


source: Caselaw Access Project

author: McCulloch, O. J.

license: Public Domain

text:
    Arkansas Construction Company v. Pidgeon-Thomas Iron Company.
    Opinion delivered January 31, 1927.
    Trial — transfer of cause — discretion of court: — Whether to transfer a cause in chancery to the law court is a matter within the court’s discretion where the motion was made after the cause was submitted and a decree had been pronounced but not entered.
    Appeal from Jefferson Chancery Court; H. R. Lucas, Chancellor;
    affirmed.

      Rowell & Alexander, for appellant.
   McCulloch, O. J.

Appellant, Arkansas Construction Company, under contract with Special School District of Pine Bluff, constructed additions and improvements to two separate school buildings in the city of Pine Bluff, and the other appellant, the JEtna Casualty and Surety Company, became surety on the bond of the contractor. Appellee, a foreign corporation, doing business in Memphis, Tennessee, furnished the structural iron and steel building material used by the Arkansas Construction Company in the performance of the contract, and this is an action instituted by appellee to recover the amount of balance alleged to be due. The total bill of the material furnished by appellee was $1,428.08, and, after allowing certain credits, not now in dispute, appellee recovered below the sum of $607.69. The action was instituted and tried in the chancery court. Appellants filed an answer, and went to trial without objection to the cause having been instituted in the chancery court, but, several days after the cause had been submitted to the court and decree had been pronounced, but before entry of the decree, appellants filed a motion to transfer the cause to the law court, on the ground that the court of equity had no jurisdiction. This was overruled, and decree entered, and an appeal duly prosecuted.

It is first contended that the court should have sustained the motion to transfer, even though it was filed after the court had announced its decree. We cannot agree with counsel, for the motion came too late. It should have been presented before the submission of the case to the court, and especially before judgment had been pronounced. Of course, the court, even after pronouncing decree, could have set aside the same and granted the motion, if proper, but it was a matter of discretion with the court whether it would entertain the motion at that late date, hence we cannot say'there was any abuse of discretion, after permitting- the case to go to judgment. It is unnecessary to say whether or not the motion should have been granted if presented in apt time.

The only other question involved on the appeal relates to the amount of recovery. There is a dispute as to the terms of the contract between the parties and as to the prices to be paid for the material. Appellee contends that the aggregate contract price was $1,428.08, but appellants contend that the total price was $1,099.65, and admitted liability for a balance of $390. Appellants made a tender of that amount, which tender was refused. The inquiry therefore turned on questions of fact, and there was a conflict in the testimony. The testimony adduced by appellee was to the effect that the agent handling the matter for appellee, as salesman, entered into an agreement to furnish the material at reasonable prices, it being impossible to specify, in advance, the quantity of material and the prices. On the other hand, the contention of appellants was that appellee agreed to furnish the material “as low as anybody in Pine Bluff,” and not exceeding a bid which the construction company had already received from a dealer in Pine Bluff, who had offered to furnish the material at an aggregate price of $1,099.65.

The court found in favor of appellants, that the contract was that appellee was to furnish the material for prices not exceeding the bid therefor which the construction company* then had from the Pine Bluff Iron Works,

The court also found from the testimony that the bid of the Pine Bluff Iron Works “was incomplete, in that it did not include all of the iron and steel which was used in the buildings. ’ ’

It appears from the testimony also that, after the buildings were completed, or rather, after all the material had been furnished, appellee’s agent presented a bill, specifying all the items, with prices extended on the bill, to the manager of the construction company, and that the latter agreed to pay the bill, and placed his O. K. thereon. The manager testified on behalf of appellants, and ádmitted that he placed his 0. K. on the bill, stating that the prices were not marked thereon, and that he only approved the list of material furnished. There is a sharp conflict on this point between the agent of appellee and the manager of the construction company. But we are unable to say that the findings of the chancery court were against the preponderance of the evidence.

Decree affirmed.


author: McCulloch, C. J.

text:
    William W. Cohen & Company v. Austin.
    Opinion delivered January 31, 1927.
    1. Appeal and error — conclusiveness of jury’s findings. — In án action to recover money advanced on cotton contracts and for fees for executing orders, where the issue as to the intention of the parties in the transactions was submitted to the jury, their findings on that issue, supported by evidence that the transactions were wagering contracts, are conclusive.
    2. "Gaming — recovery on gambling contracts. — There can be no recovery on contracts which constitute gambling transactions.
    3. Evidence — parol evidence to explain writing. — <In a suit to recover money advanced on cotton contracts and for fees in executing orders, the defense being that the contracts were gambling transactions, where the terms of the orders did not disclose the real intention of the parties, it was not error to admit testimony as to conversations and oral agreements prior to giving the orders, to show the intention of the parties in the dealings.
    Appeal from Phillips Circuit Court; E. B. Robertson, Judge;
    affirmed.

      A. D. Whitehead, for appellants.

      W. G. Dinning, for appellee.
   McCulloch, C. J.

Appellants are copartners, members of tbe New York Cotton Exchange, and engaged in the brokerage business, buying and selling, for their customers, cotton and other products for future delivery. Appellee is a citizen and resident of Phillips County, Arkansas, and, in November and December, 1924, appellants executed for appellees, on the Cotton Exchange of New York, and in accordance with its rules, numerous orders for purchases of- cotton for future delivery. The • orders were given by telegraphic messages sent by appellee from Helena, Arkansas, to appellants in New York. Appellants charged certain schedule of fees for executing the orders, and also advanced considerable sums of money for appellee to cover margins, and the cotton so purchased by appellants for appellee was finally sold at a loss. Appellants instituted this action in the circuit court of Phillips County against appellee to recover the money advanced on the contracts and also unpaid fees for executing the orders. Appellee answered, alleging that the contracts were for purchases and sales of cotton futures on margin, without any intention to deliver or to receive the cotton. There is no controversy as to the amount due if the contracts were free from the taint of wager, and the sole question in the case is whether or not the evidence was legally sufficient to support the finding that the transactions were based upon wagering contracts — contracts involving purely deals in futures, as that term is ordinarily understood. The brief telegraphic communications between the parties disclose nothing more than orders for the purchases of cotton for future delivery, but appellee testified that he was in New York a few months before these transactions occurred, and called to see appellants, and arranged with them to carry out contemplated deals in the purchasing of futures. He testified that, in this conversation with appellants, the latter disclaimed carrying on any business in the handling of spot cotton, and declared they were solely “in the contract business,” and that it was agreed between appellee and appellants that, when orders should be sent in, they would be executed solely as contracts for purchases of cotton on margin and not for actual delivery. This testimony was contradicted by one of appellants, who stated that they had no conversation or communications with appellee other than those disclosed in the telegraphic messages.

The issue as to the intention of the parties in carrying on these transactions was submitted to the jury, and the evidence was legally sufficient to support the findings on that issue in favor of appellee, hence we must treat it as settled. If the testimony of appellee be accepted as true, there can be no doubt that the contracts were those which the law denounces as gambling transactions and void, and there can be no recovery based upon such contracts. The law is so well settled on that subject that discussion is entirely unnecessary. Fortenberry v. State, 47 Ark. 188, 1 S. W. 58; Phelps v. Holderness, 56 Ark. 283, 19 S. W. 921; Barnes v. State, 77 Ark. 124, 91 S. W. 10; Clews v. Jamieson, 182 U. S. 461; Huff v. State, 164 Ark. 211, 261 S. W. 654; Mullinix v. Hubbard, 6 Fed. (2d) 109; Browne v. Thorn, 272 Fed. 950.

It is contended, however, that the court erred in allowing appellee to testify concerning conversations’ and oral agreements or undertakings between him and appellants prior to the giving of the orders. The orders for the purchase of cotton were brief, and couohed in such customary terms as would not disclose the real intention of the parties, and, if antecedent or contemporaneous oral agreements are inadmissible, there might not be any other way of proving the invalidity of the contracts. Such proof is not in conflict with the terms of the contract evidenced by the telegraphic messages, for those messages did not disclose the real intention of the parties in carrying on the transactions. It is clear, we think, that such testimony is competent, not for the purpose of contradicting the messages, but to show what the intentions of the parties were in the dealings between them. Clews v. Jamison, supra; Browne v. Thorn, supra.

The ease was properly submitted to the jury, and the evidence was sufficient to sustain the verdict.

Affirmed.


text:
    Phillips v. Baker.
    Opinion delivered January 31, 1927.
    Schools and school districts — authority to issue bonds. — Acts 1925, p. 742, authorizing the board of directors of special school distripts to borrow money and issue bonds “for the purpose of purchasing a school site or sites and building, erecting, constructing, repairing and equipping a school building or buildings and for other necessary purposes,” held to authorize directors of a special school district to issue bonds for the purpose of making extraordinary repairs arising from some emergency such as damage by fire or storm, but not for the purpose of making ordinary repairs which merely constitute maintenance; the words “for other necessary purposes” relating to things embraced in the preceding enumeration under the doctrine of ejusdem, generis.

    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Avery M. Blount, Golden Blount and Grace M. Blowvt, for appellant.

      John E. Miller and Cul L. Pearce, for appellee.
   McCulloch, C. J.

Appellees are directors of the special school district designated as Higginson Special ■School District of .White County, Arkansas, which was created by act No. 88 of the legislative session of the year 1907. Appellants are owners of property in the district and patrons of the school, one of them being a director. Appellees, as directors of the district, are about to issue and sell negotiable 'bonds in the sum of $20,000, and this is an action instituted by appellants to restrain the issuance of the bonds. A temporary injunction was issued at the commencement of this action, but, on final hearing, the complaint of' appellants was dismissed for want of equity.

It appears from the pleadings and from the proof in the case, which was brought into the record partly by stipulation, that there are outstanding bonds of the district in the sum of $15,000, issued in the year 1917 for the purpose of erecting a school building, and there is also the sum of $900 unpaid interest on those bonds. It is conceded that the new issue of bonds is to be for the purpose of refunding the former issue, and it is alleged in the complaint of appellants that the remainder of the sum to be raised by the new bond issue is to be used as a maintenance fund for the operation of the schools in the district. There is a denial in the answer that any of the fund is to be used for the purpose of operating schools, and an allegation that the excess fund is to be used for the purpose of repairing the buildings. There are no specifications in detail as to what the repairs consist of or to what extent the buildings are out of repair.

There was an attack on the regularity of the proceedings looking to the issuance of the bonds, it being alleged that the resolution of the 'board of directors authorizing the bonds was not adopted at a regular meeting of the board, or at any special meeting of which the directors were notified. These questions were tried out on conflicting testimony, and it is unnecessary to discuss them — in fact, this attack seems to be abandoned here, and it is practically conceded that the only point sought to be raised here is that the bond issue is for an excessive amount and cannot be allowed over and above the amount necessary to retire the old bonds and interest.

We are of the opinion that this attack of appellants is well founded, and that there is no authority under the law to effect a bond issue in a greater amount than that stated above. The statute, which both parties concede is the governing one, is act 252 of the Acts of 1925, page 742, and reads in part as follows':

“The board of directors of any special, rural special or consolidated school district in the State of Arkansas shall have the power, and they are hereby authorized, to borrow money for the purpose of purchasing a school site or sites and building, erecting, constructing, repairing and equipping a school building, and for other necessary purposes, including the issuance and sale of bonds for the purpose of extending the maturity of any indebtedness evidenced by outstanding bonds and interest coupons, and funding such outstanding bonds and interest coupons * * V’

Counsel for appellees endeavor to sustain the bond issue under the authority conferred in the statute, for “repairing” school buildings, but our conclusion is that, under proper interpretation of this word, as used in the statute, and under the facts of this case, there is no justification for issuing bonds for that purpose. We interpret the word “repairing” not to include ordinary repairs, which merely constitute maintenance, but it refers to substantial and extraordinary repáirs arising from some emergency, such as damage by fire or storm. It does not include necessary repairs on account of ordinary depreciation. Counsel for appellees also rely on the use, in the statute, of the words “and for other necessary purposes,” and they contend that these words should not be construed to relate to things of a like kind as those enumerated in the preceding words of the statute, for the reason that the preceding enumerated words embrace all the things capable of being- classed as of that kind, and that the words “other necessary purposes” should be construed to relate to things of a different kind than those enumerated. Mason v. Inter-City Terminal Railway Co., 158 Ark. 542, 251 S. W. 10.

We cannot say, however, as a matter of law, that the enumeration embraces all the things of their kinds, therefore the doctrine of ejusdem generis applies. We construe the words “for other necessary purposes” to relate solely to things of like kind as those embraced in the preceding- enumeration.

The decree of the chancery court is therefore reversed, with directions to enter a decree restraining appellees from issuing bonds in excess of tbe amount necessary to refund tbe old bonds and unpaid interest, which will include, of course, necessary expense of issuance of the bonds. It is so ordered.


author: Wood, J.

text:
    Missouri Pacific Railroad Company v. Barry.
    Opinion delivered January 31, 1927.
    1. Appeal and error — conclusiveness of verdict. — The Supreme Court will not set aside the verdict of a jury if there is substantial evidence to sustain it.
    2. Appeal and error — verdict— sufficiency of evidence. — In determining the sufficiency of evidence to sustain a verdict, the Supreme Court must give the evidence its strongest probative force in favor of the verdict.
    8. Trial — function of jury. — The jury are the sole judges of the evidence and of the credibility of the witnesses.
    4. Master and servant — contributory negligence as defense.— Proof that plaintiff employee, injured while engaged in interstate commerce, was guilty of contributory negligence will not debar recovery by him where there was evidence that other employees were guilty of negligence which proximately concurred in causing the injury.
    5. Master and servant — employment in interstate commerce.— Evidence held to warrant a finding that an engine hostler taking an engine from the roundhouse to haul a train carrying interstate shipments was engaged in interstate commerce.
    6. Evidence — expert testimony. — In an action by an employee for injuries resulting from a collision between locomotives, expert testimony as to the manner in which the collision occurred was incompetent, since the facts of the occurrence were not beyond the knowledge and experience of an ordinary man to understand and draw conclusions from them, when detailed by eye-witnesses.
    7. Trial — instruction—waiver of objections. — Where specific objections were taken to an instruction, an objection not thus pointed out will be deemed waived.
    8. Damages — where not excessive. — $5,BOO as damages for intense personal suffering, with permanent injury to the pelvis, held not excessive.
    Appeal from Saline. Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      E. B. Kinsworthy, for appellant.

      Mehaffy db Mehaffy, for appellee.
   Wood, J.

M. Barry instituted this action against the Missouri Pacific Railway Company, a corporation, to recover damages for personal injuries. He alleged in substance that, on August 20, 1924, he was employed by the Missouri Pacific Railway Company, a corporation, engaged in interstate commerce, and, as such employee, was engaged in interstate commerce in operating an engine and cars of the railroad company; that, while so engaged, another employee of the company operating another engine in defendant’s yards near North Little Rock, negligently and wrongfully caused that engine to run against the engine operated by the .plaintiff; that the collision thus caused by the other employee broke the steam-pipe on that engine-, and plaintiff was thrown from his engine and scalded on his back from his neck to his feet, and thereby permanently injured, to his damage in the sum of $15,000, for which he prayed judgment.

The defendant answered, admitting that it was a corporation engaged in interstate commerce, but denied that plaintiff, at the time of his injury, was engaged in interstate commerce, and denied the allegations of negligence as specifically as they were alleged, and admitted that the plaintiff was in the employ of the defendant, and alleged that plaintiff was operating an engine in defendant’s yards at North Little Rock, and that plaintiff negligently ran his engine against another engine, when plaintiff could have avoided the same by the exercise of ordinary care. The defendant alleged therefore that the plaintiff was injured .by his own negligence, and that the plaintiff assumed the risk. The defendant also admitted that the plaintiff was injured, but denied that he was injured to the extent alleged in his complaint. The trial resulted in a verdict and judgment for the appellee in the sum of $5,500, from which is this appeal.

1. It is first contended by the appellant that the evidence is not sufficient to sustain the verdict. The facts are substantially as follows: A blue-print of a plat was prepared by a civil engineer showing the location of appellant’s tracks at Baring Cross, from the north abutment of its 'bridge over the Arkansas River to a point 1,500 feet north, which embraced appellant’s roundhouse tracks and shop tracks. The blue-print shows all the tracks as they are located. It- is impracticable to bring- into this record a copy of this blue-print, which the jury had before it and which was used by the witness who prepared it, and others at the trial, in explaining the location of the tracks, roundhouse, bridge, switches, and showing the points, directions and distances incident to the occurrence under investigation. A copy of this biue-print is attached to the appellant’s brief, and has been found useful to the court in considering- the testimony of the witnesses concerning- the movements of the engines and their collision, which resulted in the injury of which appellant complains.

The appellee was in the employ of the appellant as a hostler, whose duty it was to operate a switch engine on appellant’s tracks in its North Little Rock yards. He had been in appellant’s employ about twelve years, and had been engaged in hostling at the time of the accident sixteen months. He was thirty-four years of age. The appellee, at the time of the accident, had in charge engines numbered 9320 and 1505. These engines were fastened together at their front ends, and appellee was backing No. 9320 and pulling- No. 1505, taking* the -same to the Fort Smith crossing- to be hookecl onto a train for Fort Smith. Both engines were ready for service. Coming- out of the roundhouse, appellee went’ down to what is known as the “cross-over,” where-he would have to throw a switch to get on the cross-over track. After he got there, he would have to throw another switch to get on the south main line, and then, before he could get from the south main line to the north main line, he had to throw another switch. Appellee was going in a southerly direction. There was nothing to obstruct the view of the appellee in passing over the cross-over track on to the south main line, unless the engine itself obstructed it. The switch stands at all the switches had lights on them, red on one side and green on the other. The green light indicates that the main line is open and the red light indicates that the switch is open. A man coming out, as the appellee was, when he looked at the switch lights could tell whether the track was open for him or not. The train that engine No. 1505 was to take-out of the yards to Port Smith was bound for Kansas City. It was an interstate train. The accident occurred at 8:55 p. m. August 20, 1924. The appellee had a helper named Dean, whose duty it was to take coal and water, and line (that is, throw) the switches for the hostler so that appellee could pass from one track to another. When appellee was about ready .to start from the roundhouse with the engines, he told his helper that the passenger train was due pretty soon, and they would have to hurry, and he directed his helper to go line the-switches. Appellee looked ahead, and his helper was standing right at the cross-over, and gave the appellee a highball signal to come ahead. Appellee proceeded to the cross-over track, and stopped right- on the points. At that time he saw the other man enter on the bridge south. 'Appellee’s helper walked up to the engine and asked if that wasn’t the passenger train. Appellee looked ahead, saw it had a lantern on the pilot, and knew it was no passenger train. It was some other man from over the river bringing an engine. When appellee saw this man, he stopped his engine and told his helper it was a hostler coming over the river, and to go up there and throw the switch and flag him so that appellee could get out, and the other man could come in and get out of the way of the passenger train. Appellee knew-the other engine was coming — it had a big headlight — but sent his helper to flag it. Appellee’s helper did not flag appellee to come ahead, and he didn’t flag the other man down. The last time appellee saw the light it was green, but he told his helper to go down there and turn it red. Appellee could see the headlight on the other engine plainly, and the other engineer could also see appellee. It was the duty of appellee’s helper to line up the switches and signal appellee to come on. He generally would go up there and line them all up and signal appellee. It was the duty of the helper, if there was any danger ahead, to tell appellee, hut he didn’t do so. It was appellee’s duty to stop, and he did stop. Appellee saw the other man coming, and tried to heat him across the track. Appellee had a man out there to stop him, and appellee was going real slow — barely moving. Appellee was familiar with the rules of the company. Appellee could see over the end of the engine, except when he got on a curve; then he could not see. In going in these switches appellee had gone in there just as it had been done for the last five years. Other hostlers did the same. Appellee had instructions from his superior to that effect. The helpers, every one of them, got out there and would have to throw these switches. If this were not done, appellee could not get trains out. After this custom had gone on for a long time, they put up a bulletin to give the hostlers more chance to get out.

As soon as appellee’s helper stepped off of the step, and, as he was going to the switch, appellee grabbed the whistle and sounded the other man down. As appellee looked out, his helper was stooping down making the switch, and, as appellee saw him do that, the tank of appellee’s engine projected, and the switch light was thrown close to the line, and appellee could not see the switch light. As appellee’s helper stooped down to throw the switch, the appellee was sure he threw it before he straightened up. Appellee started forward, and saw that the other man, whom he had told his helper to flag, did not stop. Appellee then p'ut on air, reversed his engine, and started getting out of his way. The other man didn’t stop. He was coming so fast appellee could not move fast enough to get out of his way, and appellee’s tank projected out just enough to stop his engine, which came right by the cab. Appellee was standing in a position (which he indicated) trying to unhook the whistle cord to blow the whistle, but could not do so, and the cord broke. About that time the other engine came by and broke some part of the pipes, and the steam struck appellee in the back and blew him out of the cab. It knocked appellee unconscious, and, when he came to himself, he was about twenty or thirty feet down the embankment. Appellee could not tell at what rate of speed the other man was coming, but he must have been moving pretty fast. Appellee had reversed his engine and had not had time to get up speed. He had moved his engine about a car-length from the place where he was when he saw the other man. The other engineer had ample time to stop his engine, after he saw where appellee was, if he had had his train under control. The other engineer could see appellee if he was looking out. Appellee could have stopped a 100-car train in that space. If the other man was taking* cars to the Cotton Belt, he had to keep going on the northbound track until he got to the Cotton Belt Junction, a mile and- a half away from where the accident occurred.

On May 23, 1924, the following bulletin was posted: “Effective May 25, switch tenders will be taken off at roundhouse lead at Little Rock. All trains will approach this cross-over under control.” Having* a train under control means being able to stop any distance where the engineer could see a rail broken; to have such control that the train could be stopped within the shortest time necessary in an emergency.

There was read to the jury the following rule of the company: “Rule 104A. A switch must not be closed for main track while a train, engine or car is outside of clearance point of the siding. Both switches of a crossover must be open before a train starts to make a crossover movement. Neither switch of a cross-over between two main tracks must be closed for a main track while a train, engine or car occupies such cross-over. A train entering a siding or moving through a cross-over between main tracks must not stop to pick up a man at switch while any part of train is between switch and clearance point of siding or between switches of the cross-over.”

Tlie bulletin posted on May 23, 1924, said nothing about rule 104, but it supersedes it, because it says, “Effective May 25, switch tenders will be taken off at roundhouse lead. ’ ’ They used to keep some of the old men there to throw the switches for the switch tenders, and the bulletin meant that these were to be taken off and the hostlers would have helpers to throw the switches. In North Little Rock all trains must approach the cross-over under control. The bulletin doesn’t say anything about rule 104. The bulletin means that you were to go so slow you wouldn’t hit anybody, and that superseded rule 104. Appellee’s superior, the switching foreman, never told appellee not to obey rule 104, but he did tell appellee that the bulletin was put up there for the protection of the engineers, and for appellee to go right on out and get on to those switches ahead of other hostlers, all switch engines, and everything except passenger trains. When appellee got in a position where he could not see the switch stand, it was a danger sign, and was a signal for appellee not to come on until his helper flagged him. There was no signal that appellee could not see, but he had sent his helper there for the purpose of throwing the switch, and appellee was positive that he had done it. Appellee went on the main line without a signal from his helper. He expected his helper to throw the switch and flag the other man down.

The.above is substantially the testimony of the appellee himself.

Another witness testified for the appellee, among other things, as follows: An engineer operating an engine going across the bridge north, from the time he left the bridge, could have seen an engine in the daytime cpming towards the cross-over at the time it left the léad from the roundhouse, and in the night time he could not see so far. If he had his engine under control, he could have seen an engine at the cross-over in time to stop before striking him. This witness further testified: “If I was going along the main line like this party there, taking the cars to the Cotton Belt Junction, and the switches were lined up for me, I would go ahead, but I would run under control: That would mean that I could stop if some one else got in the way.” And further: “According to the rules that have'been in force since they changed the helpers to white helpers, they hold the helpers somewhat responsible. xThat is, for lining up the switches and carrying out the instructions of the hostler. If the hostler told the helper to go in front of him and throw the switches, it would be the helper’s duty to obey the hostler. The hostler takes signs and signals from the helper. If the helper flagged a hostler to stop, it would be-the hostler’s duty to stop.”

Another witness for the appellee testified that the train that was to ,be taken out by the engine operated by the appellee was a train to Kansas City all the way through — it was billed for Van Burén, from there to •Coffeyville, and on through. This witness further testified : “ If a man is coming along the main line, and the switches show green, that indicates that the main line is open, which mehns that he can pass on, and if some one was not down there throwing the switch, he would have the right to go ahead. If the other man didn’t throw the switch or flag him to stop, he would have the right to proceed. If I were a helper and the hostler told me a train was coming, and for me to go and throw the switch and flag him down, it would be my duty to do it.”

H. A. Dean, a witness for the appellant, was asked to tell the jury how the accident occurred, and in answer stated: “We came out of the roundhouse intending to go to the crossing with two engines, with a switch engine and road engine, and we had the switch engine in the lead, and came up to the switches — to the cross-over switches. I lined the first switch and started for the second switch, and I saw this other engine coming across the bridge, and I didn’t line the switch. I walked back and asked Mr. Barry if there were any passenger trains due. He said, “No, that is a hostler coming across the bridge,” and he said, “Ho ahead and throw that switch, and we will go out ahead of it.” So I walked back up a little, and I saw he was coming. I wouldn’t give him a signal to come on out, and I wouldn’t throw the switch, and he came out, and he came up, and he stopped his engine even with me, and he was at the cross-over at the time, and he told me to go and throw the switch and let’s get out ahead of him, and at the time he was going out into the cross-over. I gave him a stop signal, and he stopped the engine even with me. I crawled up in the gangway of the engine and told him that that man wasn’t going to stop, and that I wasn’t going to throw the switch, and he kept moving on back, and asked me to go ahead and throw the switch; about that time they hit. ’ ’

Further along in his testimony Dean was asked why he didn’t flag the other fellow, and answered, “I flagged Barry, and it was right out there where they could all see it.” He was then asked, “Didn’t you flag the other fellow?” and answered, “One stop signal — it would have been just the same if I had flagged.”- He further stated that he was standing between the two main lines — didn’t know whether the other fellow could see him or not. There were no obstructions. He gave the stop signals. This did not necessarily signal the other fellow. He was asked why, and answered, “If you are out on the railroad, and a stop signal is given, it necessarily means that any fellow that sees it stops.” This witness further testified that it was his duty to obey the hostler’s instructions, and that the appellee told him to go out there and line the switch, and he refused to do it. This witness, further on in his testimony, in answer to questions propounded by appellee !s attorneys, stated that appellee had told witness to line up the switch and they would get out ahead of the other man. He didn’t remember that the appellee told him to flag the other man, but stated, “If I had flagged the other fellow and he had obeyed my signal, I expect that it would have prevented the accident.” Witness saw the other fellow coming, and heard what he thought was the appellee reversing his engine when witness jumped off the engine.

We have set out the testimony of the appellee and other witnesses tending to corroborate him and tending to support the verdict, and also excerpts from the testimony of the witness Dean for the appellant, which tends to sustain the verdict. We have set forth the testimony of the appellee and portions of the testimony of other witnesses tending to sustain the verdict and have not set forth the entire testimony in detail of appellant’s witness Dean and other witnesses for the appellant, tending to show that the verdict was contrary to the evidence, for the reason that it is the established doctrine of this court not to set aside the verdict of a jury where there is any substantial evidence to sustain it. In determining whether the evidence is sufficient to sustain the verdict, it is our duty to give the evidence its strongest probative force in favor of the verdict. It is likewise a familiar and unvarying rule that the jury are the sole judges of the evidence and the credibility of witnesses. Applying these rules to the testimony above detailed; we are convinced that it was sufficient to sustain the verdict.'

It may be conceded, for the moment, that the above testimony and other testimony for the appellant, not set forth in this opinion, was sufficient to prove that the appellee was guilty of contributory negligence, but this is nqt sufficient, under the Federal Employers’ Liability Act, to prevent recovery by the appellee, provided the testimony was sufficient to justify the jury in finding that other employees of the appellant were likewise guilty of negligence which concurred proximately in causing the injury to appellee. Conceding that the testimony in this record is sufficient to warrant a finding that the appellee was guilty of contributory negligence in disobeying the rules of the company above set forth, which were made for the protection of its employees, the testimony was certainly sufficient to prove that the employees operating the engine which collided with the engine operated by the app,ellee, as well as the appellee’s helper, were guilty of negligence which concurred with the negligence of the appellee, and that'their concurring negligence was the proximate cause of appellee’s injury. The testimony warranted a finding that the hostler operating the northbound engine at the time of the collision was violating the rule of the company, shown by the bulletin, set out above, requiring that “all trains will approach the cross-over under control.”

The testimony tended to prove that, if the engineer on the northbound engine had had his engine under control at the time he approached the cross-over, the accident would not have occurred, notwithstanding the contributory negligence of the appellee, if any, in violating the rule of the company set forth in rule of the company No. 104A, above. Likewise the jury might have found that, if the engineer of the northbound engine had kept the proper lookout, he could have seen the flag which appellee’s helper had put out for the appellee, as it was “right out where all could see it,” and likewise the stop signal given by the appellee, which meant that “any fellow that sees it .stops.” The appellant contends that the appellee, in going on to the cross-over until his engine got so far on the main line that the northbound engine collided with it, was guilty of contributory negligence, because rule 104A forbade appellee going upon the cross-over as the switch lights were turned against him. But the appellee himself testified that, when he saw the other engine, he stopped his own engine, and looked to see what it was, and told his helper that it was a hostler coming over the river, and for him to go up there and throw the switch and flag him, so that appellee could g-et out ahead, and the other engine could come in and get out of the way of the passenger train. The appellee saw the other engine entering the bridge and saw that it was not a passenger train, and he contended that he was violating no rule of the company in running his engine •over the “cross-over switch” in the manner he was doing at the time of his injury, but that, on the contrary, it was his duty to “go right on out and get■ on to those switches ahead of other hostlers, all switch engines, and everything except passenger trains.” There was testimony tending to prove that, if rule 104A of the company forbade this, it had been abrogated by habitual disregard of the rule in the manner -appellee was doing at the time of the accident, so long continued as to justify the inference that appellee’s superior officers charged with the enforcement of the rule must have had knowledge of its violation, and that they had consequently acquiesced therein.

Now the testimony shows that it was the duty of the helper to obey the directions of the hostler. The helper, Dean, himself testified that such was his duty. Then, unless some rule of the company forbade the appellee from going upon the cross-over switch, it was the duty of the helper, Dean, to obey the directions of the appellee “to go ahead and line the switches and flag the engineer coming from across the river. ’ ’ The jury might have found that Dean, the helper, failed to discharge his duty in this particular, and that this failure so to do was negligence which concurred with the negligence of the engineer on the northbound engine. Therefore, even if the appellee himself might have been guilty of contributory negligence, the jury were clearly justified in finding from the testimony that the engineer on the northbound engine, and likewise appellee’s helper, Dean, were guilty of negligence, which, concurring with the negligence of the appellee, was the proximate cause of the injury. Furthermore, the appellant is in no attitude to complain here that the undisputed testimony shows that the appellee, at the time of his injury, .was operating his engine contrary to such rule. The appellant did not take this position in the court below, but, on the contrary, under proper prayers for instruction, asked the court to submit to the jury the issue as to whether this rule of the company had been abrogated, and, if not, whether the same had been violated, which prayers for instructions-the court granted. It is therefore wholly immaterial, under the Federal Employers’ Liability Act, whether or not the appellee was guilty of negligence which contributed to produce the injury. In § 3 of that act it is

provided, among other things, as follows: “The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employees.” This statute, says Ritchey, “rejects the common-law rule and. adopts another deemed more reasonable. Under this clause, it has been held that contributory negligence does not, in any case, defeat a recovery, but only diminishes the amount of damages.” Ritchey on Federal Employers’ Liability Act, p. 152, § 64. Numerous Federal and State cases are cited in notes to support the text, among them St. Louis, I. M. & S. Ry. Co. v. Sharp, 115 Ark. 308, 171 S. W. 95, where we said: “Under that statute, contributory negligence does not bar recovery, whether it be the violation of the rules or some other act of negligence.”

As we view the testimony and the above authorities, the appellee is entitled to recover, even though he himself was guilty of contributory negligence. But it occurs to us that the testimony was sufficient to warrant the jury in finding that the appellee was not guilty of contributory negligence.

The appellee testified that he directed his helper “to line the switches and flag the other fellow,” and that his helper went forward and was “stooping down making the switch” when appellee’s engine went upon the cross-over. The helper passed out of sight of appellee, because the tank of his engine obstructed his view, but the helper was supposed to have thrown the switch. This and other testimony of appellee made it a question for the jury as to whether appellee was guilty of contributory negligence.

The testimony was sufficient to warrant the jury in finding that the appellant, at the time of the injury to appellee, was engaged in interstate commerce, and that the appellee at that time was also engaged in such commerce. He was moving an engine which was to pull a freight train of appellant in which there were cars hound for destination outside of the State. These, together with the measure of damages applicable in such cases, were issues of fact for the jury, and were submitted under correct declarations of law, which we have carefully examined. It would unduly extend this opinion to set them out and comment upon them.

2. Counsel for appellant asked skilled engineers and an experienced foreman of a wrecking crew questions which elicited their opinion as to the manner in which the collision occurred, from their observation of the crossover, the marks on the engine, and the blue-print drawing representing the two engines and the cross-over. The subject-matter of these questions did not call for the opinion of experts. The facts of the occurrence were not beyond the knowledge and experience of any ordinary man to understand and draw conclusions from them, when detailed by eye-witnesses. Therefore the expert testimony was not competent, and the court did not err in so holding.

3. The court, in the first instruction given at the instance of the appellee, told the jury, in effect, that, if the appellee was injured while his engine was engaged in interstate commerce, and his injury, in whole or in part, resulted from the negligence of appellant or ally of its agents or employees, then the verdict must be in favor of the appellee. The only defect in the instruction is that it omitted the submission to the jury of appellant’s defense of assumption of risk by the appellee. But the appellant, while making specific objection to the instruction on various other grounds, did not object to it on this ground. Therefore this objection was waived by the appellant. Furthermore, other instructions correctly submitted this issue, and the court told the jury, in an instruction on its own motion, that all the charge must be taken and considered as a whole; that none of the instructions could be considered singly.

General and specific objections are made to all the instructions that were given by the trial court, and likewise objections were made to the rulings of the court in refusing certain prayers for instructions asked by the appellant and in modifying and giving certain prayers as modified. We have carefully examined all of these objections, and find no errors in the rulings of the court in its charge to the jury. Taken as a whole, the charge fully and correctly stated all the issues presented by the pleadings and the testimony adduced to sustain the respective contentions of the parties. The- charge announced familiar principles of law, and no useful purpose could be subserved in setting out and commenting upon each particular instruction in detail.

4. The verdict was not excessive. The physician who treated the appellee testified that he was burned from his shoulders to his buttock. An X-ray picture showed that one hip was higher than the other, and that there was a deformity of the pelvis — a small callus on the right side — showing that appellee had -an injury of the pelvis and backbone. The deformity of the pelvis would always remain. The witness could not say that this injury was caused by the accident. The appellee’s testimony, however, showed that, when the pipe on the engine was broken, the steam blew him out of the cab, knocking him unconscious. He could not move for ten days — had to lie on his stomach and chin. His back and right leg still hurt him. He could not do as much now as he did before the accident. He was strong and healthy before the accident — weighed 180 pounds, and now weighed 144 pounds. The jury might have found from the testimony of the appellee that the injury to his back and pelvis was the result of the accident. Appellee’s sufferings were most intense. Certainly it cannot be said, under these circumstances, that the amount of the verdict was excessive.

The record as a whole presents no reversible error. The .judgment is therefore affirmed.

Mehaeey, J.,*not participating.


text:
    Gorham v. Hall.
    Opinion delivered January 31, 1927.
    1. Abatement and revival — intervention.—One who becomes party to a suit to cancel 'a note and mortgage, alleging by way of intervention that he purchased same for value and without notice of defects and asking foreclosure, is in effect a plaintiff, and, upon his death, the cause should be revived against his personal representative, as provided in Crawford & Moses’ Dig., § 1066.
    2. Parties — intervention defined. — Intervention is a proceeding in a suit or action by which a third person is permitted by the court to make himself a party for the protection of some right or interest alleged by him to be affected by such proceeding.
    3. Abatement and revival — intervener as plaintiff. — One who, by leave of court, files a complaint or pleading asking for affirmative relief independent from that of the plaintiff or defendant in the original action, or against either or both, is an intervener, and should be classed as a plaintiff rather than a defendant as affecting revival of the action, under Crawford & Moses’ Dig., .§ 1066.
    Appeal from Newton Chancery Court; 8am Williams, Chancellor;
    affirmed.

      Powell, 8mead & Knox and G. E. Wright, for appellant.

      Goodwin & Goodtvin, for appellee.
   Wood, J.

This action was instituted by the plaintiff against J. W. Hall to cancel a note and a mortgage given to secure the same, on the ground of fraud alleged to have been perpetrated by the defendant in procuring the note and mortgage by false representations. The defendant denied specifically the allegations of fraud, and set up that he had sold and transferred the note and mortgage to A. Henson. A. Henson filed an intervention in the cause, in which he alleged that he had purchased the note and mortgage from the defendant in the action for a valuable consideration without notice of any defects therein. He set out in his intervention the note and mortgage, alleged that the note had not been paid, that the conditions of the mortgage had been broken, and prayed that, upon final hearing, he have judgment for the amount of the note and that the mortgage he foreclosed to satisfy the same. The plaintiffs answered the intervention of A. Henson, in which answer they admitted the execution of the note and mortgage, but denied that the same had been transferred to the intervener, A. Henson, for a valuable consideration, and alleged that Henson was not an innocent purchaser of the note and mortgage, and that the assignment to him was made in full knowledge of plaintiffs’ rights and in collusion with Hall, with the fraudulent intent to defeat the plaintiffs’ action. The plaintiffs prayed that the intervention be dismissed and that they have the relief prayed for in their original complaint.-

A. Henson, the intervener, died, and E. W. Henson, administrator of the estate of A. Henson, appeared in court and suggested the death of A. Henson, and moved that the cause be revived and proceed in the name of E. W. Henson as administrator. The court’s decree recites that the cause came on to 'be heard upon its regular call and that, upon the death of A. Henson, the cause was revived in the name of E. W. Henson, his administrator; that the plaintiffs failed to appear, and that the cause was thereupon heard upon the complaint, the answer, and the intervention of A. Henson after revival of the cause in the name of his administrator, and upon the exhibits. A decree was rendered in favor of the administrator of Henso'n, deceased, against the plaintiffs for the amount of the note, and directing* that the mortgage be foreclosed to satisfy the same. From that decree is this appeal.

The only question raised by this appeal is whether or not the court erred in reviving the cause, under the facts stated, in the name of the administrator of the estate of A. Henson, deceased, and in entering a decree in his favor against the appellants.

Section 1066 of Crawford & Moses’ Digest provides: “An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith, ’ ’ .etc. Learned counsel for the appellants contend that this section has no application, because, as they assert, A. Henson, the intervener, should be classed as a defendant in the action rather than a plaintiff, and that the action should have been revived under other sections of the statue, which were not complied with. We do not concur in this view. While A. Henson, in his complaint, designates himself as the “interpleader,” his complaint is not technically an interplea and his action an action of interpleader. See 33 0. J. 418 et seq. But, while he calls himself the interpleader, he properly designates his pleading- as a plea of intervention. “Intervention,” in practice, “is a proceeding in a suit or action by which a third person is permitted by the court, to make himself a party. In practice an intervention is the admission by leave of court of a person, not an original party to the pending legal proceeding's, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceeding. Literally, an intervention means the act or fact of intervening; any interference that may affect the interest of others — interposition. Webster’s International Diet.; 33 C. J. 476. .See also 20 R. C. L. 682, where “inter-pleader” and “intervention” are defined and the distinction drawn between them,

Under the above definitions, A. Henson must be classed as an intervener. We have no statutory definition of “intervention” or “interpleader,” but the above definitions indicate that one who, by leave of court, files his complaint or pleading asking for affirmative and independent relief from that of the plaintiff or defendant in the original action, or against either or both of them, is an intervener and should be classed as a plaintiff, rather than a defendant. The complaint of A. Henson shows a plea of intervention in which he sets up that he is an innocent holder for value of the note and mortgage, and asks that the same be foreclosed. He thus, in effect, asks affirmative relief against both the original plaintiffs and the defendant in the action. While he occupied the same adverse position to the plaintiffs as the defendant in the original action, his alleged purchase for value without-notice gave him rights independent and adverse to both the plaintiffs and defendant in the original action, and gave him the right, as intervener and plaintiff, to affirmative relief against both of them, which he sought and obtained in the decree from which this appeal is prosecuted. The position of A. Henson in this case is analogous to that of an intervener in an attachment suit.

In Jones v. Seymour, 95 Ark. 593-595, 130 S. W. 560, we said: ‘ ‘In the trial of an intervention in an attachment suit, the intervener becomes in effect the plaintiff.” So here A. Henson, the intervener, becomes in effect a plaintiff in the action, and the court therefore, upon the suggestion of his death by his administrator, did not err in reviving the action forthwith in the name of his administrator, under § 1066, 0. & M. Digest, supra.

The decree is in all respects correct, and it is therefore affirmed.


text:
    J. B. Colt Company v. Pinkerton.
    Opinion delivered January 31, 1927.
    Bills and notes — patented article. — In an action on a contract and note given for a patented article, it was error for the court to direct a verdict for defendant if the note did not show on its face that it was executed in consideration of a patented article as required by Crawford & Moses’ Dig., § 7956, thereby in effect taking away from the jury the issue whether defendant was indebted to plaintiff on the contract aside from the note.
    Appeal from Nevada' Circuit Court; James H. McCollum, Judge;
    reversed.

      H. E. Rouse and J. D. Montgomery, for appellant.
   Wood, J.

The original complaint and amendment thereto show that this is an action by the plaintiff against the defendant on a contract and note evidencing the purchase by the defendant from the plaintiff of “one carbide generator and attachments, including fixtures, burners, globes, stovepipes, fittings, and other supplies.” The purchase price of the articles listed was $259.75, evidenced by a note and contract' executed for that amount. The contract was evidenced by an order of the defendant, the purchaser, who lived at Rosston, Arkansas, to the plaintiff, the seller, at New York, New. York, which was accepted at New York May 5, 1919. On August 8, 1919, the defendant executed a note in the sum of $259.75, on which there was a payment of $50 on October 13, 1920, and a renewal note taken May 16,1922. This latter note was the one upon which the original complaint was based, and the complaint was amended, setting up the contract and the renewal note, and praying judgment in the sum of $233.80.

The answer admitted the execution of the note, and alleged that it was invalid because given for a patented article; that the note is not on a printed form, and does not show upon its face that it was executed in consideration of a patented machine, in compliance with § 7956, C. & M. Digest. The answer also alleged that the carbide generator was guaranteed by the plaintiff, and that same proved to be worthless within a short time after it was purchased. By an amendment to his answer the defendant, on July 14, 1925, pleaded that the action was barred by the statute of limitations.

The plaintiff introduced the note and contract upon which the action was bottomed, and testified that the amount was due as alleged in the complaint. The testimony for the plaintiff tended to show that the parts of the carbide generator were patented at one time, but that none of the articles sold were completely covered by patent. The parts of the machine were patented by different people and patents. Witness could not say what articles were patented, or give the number of the patents. As late as August 1, 1922, the appellee promised to pay the balance due', and made no complaint at that time of the generator which had been installed, and was in use and in good condition.

There was a statement in the record to the effect that the generator was installed July 8, 1919, and that the same was complete and satisfactory. The plaintiff was a New Jersey corporation, having its principal place of business in New York City. It only transacted interstate business in Arkansas. All orders received were accepted outside of the State and the goods were shipped from New York to Arkansas. There was-testimony on behalf of the defendant tending to prove that the generator was operated satisfactorily from July 9,1919, until February, 1920; that it gave satisfaction for seven months. The defendant moved and had it installed a second time, after which it was operated for about three months. The defendant discovered that it was rusty about a month after he moved it. Over the objection of plaintiff, the defendant testified that it states on the generator “fully protected by patent throughout the principal countries of the world. ’ ’ The defendant signed the renewal note May 16, 1922, and paid the plaintiff $50 on the original note and contract.

The plaintiff prayed the court to instruct the jury as follows:

“No. 1. You are instructed to find for the plaintiff.
“No. 2. If you find from the evidence in this case that defendant, more than a year after he received the articles set out in the contract, made payment thereon, and executed a renewal note for the balance due, you are instructed that this was a complete acceptance on the part of the defendant, and that he waived any breach of warranty on the part of the plaintiff, and you will find for the plaintiff.”

The court refused the above prayers for instructions, to which ruling the plaintiff duly excepted.

The court, on its own motion, gave the following instruction:

“Gentlemen of the jury: If you find from a preponderance of the evidence in this case that the note that has been introduced in evidence, under which this suit was brought, was executed in consideration of a patented article, and that said note does not show upon its face that it was executed in consideration of a patented article, machine or implement, then your verdict will be for the defendant.”

The plaintiff duly excepted to the ruling of the court in the giving of the above instruction on its own motion. The jury returned a verdict in favor of the defendant. The plaintiff moved for judgment notwithstanding the verdict, which motion the court overruled. Judgment was entered in favor of the defendant, from which is this appeal.

Although the note in controversy was void because not executed in compliance with § 7956 of C. & M. Digest, nevertheless the court erred in instructing the jury, on its own motion, that, if the note was not executed, in compliance with the statute, the verdict should be in favor of the defendant. This was, in effect, a peremptory instruction to return a verdict in favor of the defendant if the jury found that the note on its face failed to show that it was executed for a patented article, and, if they so found, had the effect of taking away from the jury the further issue as to whether or not the defendant was indebted to the plaintiff on the contract.

In the recent case of J. B. Colt Company v. Mitchem, ante, p. 55, after reviewing former decisions of this court reiterating the doctrine therein announced, we said: “This court is committed to the doctrine that the main purpose of the act was to enable the maker of a negotiable instrument, given for patent rights or patented articles, to make the same defense thereto, ag-ainst any holder thereof, that could be made against the original holder or party to whom it was given. [Citing cases]. Hence it is held in these cases that the failure to comply with the statute does not affect the validity of the sale, but renders only the note absolutely void. It has been held further that, though the note may be void, the vendor may recover whatever may be due him on the contract of'sale from the vendee.”

In the case of Brenard Manufacturing Co. v. McRee’s Model Pharmacy, 171 Ark. 978, we held that the court erred in giving an instruction similar to the one in the case-at bar. In that ease, as in this, the suit was originally brought on the note, but the complaint was subsequently amended, in which amendment a recovery was sought alone upon the contract, and we said: “While a suit upon the note and upon the contract of sale are entirely separate and distinct causes of action, the effect of the defendant’s answering the complaint and defending the action entered its appearance.”

Therefore it follows in the case at bar that, although the note which was the foundation of the original complaint was void, nevertheless the amendment to the complaint and the answer thereto should be treated as raising the issue as to whether or not the appellee was indebted to the appellant on the contract. While we find no error in the ruling’s of the trial court in submitting to the jury the separate issue as to whether or not the appellee was indebted to the appellant on the contract of sale, nevertheless it is impossible to determine, under the erroneous instructions of the court, whether the jury’s verdict was bottomed on the issue of whether 'or not the note was void or whether or not the appellee was indebted to the appellant under the contract.' The court should have instructed the jury that, if they found that the note was void because it failed to comply with § 7956, supra, then their verdict should be in favor of the appellee, unless they found that the appellee was indebted to the appellant on the contract, in which event their verdict should be in favor of the appellant.

We find no other error in the rulings of the trial court, hut, for the error in giving the above instruction on the court’s own motion, the judgment is reversed, and the cause remanded for a new trial.


author: "Wood, J.

text:
    Arkansas Brick & Tile Company v. Crabtree.
    Opinion delivered January 31, 1927.
    Courts — affidavit for appeal — waiver.'—Where plaintiff recovered judgment against defendant in a municipal court, and defendant appealed to the circuit court without filing the affidavit for appeal required by Crawford & Moses’ Dig., § 6513, and Acts 1915, p. 347, § 9, and plaintiff in limine objected to the jurisdiction of the circuit court, he will be held not to have waived the failure to file the affidavit for appeal, and such failure is ground for dismissal.
    » Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    reversed.

      A. D. Whitehead, for appellant.

      W. G. Dinning, for appellee.
   "Wood, J.

The Arkansas Brick & Tile Company instituted this action in the municipal court of Helena, Arkansas, against Gr. W. Crabtree to recover the sum of $108.48 on an alleged check given by the defendant to the plaintiff. Judgment was obtained for the above amount in the municipal court. The defendant prayed and was granted an appeal to the circuit court. An order was entered in the circuit court reciting that the cause had been appealed from the municipal court of the city of Helena, Arkansas. The plaintiff moved to dismiss the appeal on the ground that the transcript “sent up from the municipal court does not show that an affidavit for an appeal was filed in the said court, as required by the first paragraph of § 6513 of Crawford & Moses’ Digest.”

The circuit court overruled the motion to dismiss, and the plaintiff duly excepted to the court’s ruling. The cause thereupon proceeded to a hearing, and judgment was rendered in favor of the defendant, from which the plaintiff duly prosecutes this appeal.

The law requires an affidavit for an appeal from a .justice court to the circuit court as a prerequisite to the circuit court’s jurisdiction to entertain an appeal, and, unless waived, is ground for dismissal. Section 6513, C. & M. Digest; Merrill v. Manees, 19 Ark. 647; Billingsley v. Adams, 102 Ark. 511. The appellant in limine objected to tbe jurisdiction of the circuit court, and therefore did not waive the affidavit for appeal. See Elder v. Crabtree, 59 Ark. 177; Lochridge Dry Goods Co. v. Daniels, 115 Ark. 423-429. This is likewise the law as to appeals from municipal courts. Act 87 of the Acts of 1915, § 9, p. 342-347.

We find no affidavit for appeal in this record. This is not a case where a defective affidavit was filed, but where there is no affidavit at all. The judgment is therefore reversed, and the cause is remanded, with directions to the trial court to require the municipal court to amend the transcript so as to show that an affidavit for appeal was made, if it can be done consistently with the truth, and that the cause be tried de novo. But, upon failure of the appellee to thus perfect his transcript, the same shall be dismissed by the trial court. See Merrill v. Manees, supra, at page 649.