author: Smith, J.

text:
    Norris v. State.
    Opinion delivered February 15, 1926.
    1. False pretenses—indictment—description of written instruments.—'Where a written instrument is only a step in the transaction or an incident to the offense of false pretenses, a particular description thereof is unnecessary.
    2. False pretenses—venue of offense.—Proof that false representations were made in and mailed from the county of the venue, and that they induced the mailing of a check to that county and its receipt there, was sufficient to establish the venue, though the check was issued from and paid in another State,

      3. False pretenses—reliance upon false pretense.—An indictment for false pretenses which alleges that the accused, by means of an alleged false pretense, induced the party defrauded to issue its bank check, sufficiently alleges that the false pretense induced the issuance of such check.
    4. False pretenses—obtaining check for another.—An indictment which alleges that accused by false pretense induced the party defrauded to issue its check to a third person is not demurrable, as the statute (Crawford & Moses’ Dig., § 2449) does not require that the “valuable thing” shall be obtained for one’s own self.
    5. False pretenses—sufficiency of evidence.—Evidence held sufficient to sustain a conviction of obtaining property by false pretense.
    6. False pretenses—reliance upon false statement.—The charge of procuring a check from an insurance company by falsely pretending that an assured was dead was sustained iby proof that accused, as the insurer’s agent, knowingly signed a false statement of assured’s death for the purpose of inducing the insurer to issue a check in payment of a fictitious claim.
    7. False pretenses—evidence of other offenses.—Upon an indictment alleging that accused by false representations induced an insurance company to issue its check for a death loss when the person insured was alive, evidence that accused had participated in other similar fraudulent schemes to defraud the insurer was competent and not prejudicial, where the court charged that the testimony was admitted solely to show design, intention, knowledge and good or bad faith.
    8. False pretenses—defense—other offenses.—In a prosecution for fraudulent pretense in procuring a cheek from- an insurance company by falsely pretending that a person insured was dead, it was not competent for the defense to prove that, after accused severed his connection with the insurance company, another fraudulent claim was presented to the company, as such evidence had no tendency to disprove accused’s guilt.
    9. Criminal law—admission of evidence—harmful error.— Upon a charge of procuring a check to be issued by an insurance company to a person named as sister of the person insured, by falsely pretending that the latter was dead, proof by a person of the same name as the alleged sister that she was not a sister of insured was incompetent, but not prejudicial, since it was purely negative.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      Rowell & Alexander and H. Jordm% Monk, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellant was convicted on a 'Charge of obtaining a check under false pretenses, and has appealed. The indictment is- of unusual length, but, stripped of its legal phraseology, its allegations are as follows: That appellant, C. B. Norris, was on August 9, 1924, agent of the Metropolitan Life Insurance Company, a corporation under the laws of New York, and hereinafter referred to as the insurance company. That this insurance company issued a policy of insurance on the life of Sim' Davis, agreeing thereby to pay a sum of money upon the death of Davis. That appellant, desiring to cheat the insurance company, fraudulently represented to it that Davis had died on August 6, 19-24; that Dr. C. E. Spann attended and treated the said Davis in his last illness; that Mary Jones, a sister of Davis, was the beneficiary in said policy, and had paid all premiums due thereon and was entitled to receive the amount thereof, which -was $135.60. That a statement in writing purporting to be that of the physician attending Davis in his last illness, dated August 9, 1924, and signed C. E. Spann, M. D., and a statement in writing dated Ahgust 9, 1924, and signed Mary Jones, claimant, were filed with the company as proof of the death of the said Davis, whereas, in truth and in fact, the said Sim Davis did not die on August 6, 192.4, and was not dead; that Dr. C. E. Spann did not attend Davis; that Mary Jones had not paid the premiums on the policy, and had made no claim as his beneficiary. That these false representations were made to the insurance company by appellant, who knew them to be false, arid by means of said false pretenses appellant Norris induced the insurance company to issue its bank check for the sum of $135.60, payable to Mary Jones, and of the value of $135.60, with the fraudulent intent of defrauding the insurance company out of that sum of money.

Appellant demurred to the indictment, and excepted to the action of the court in overruling the demurrer. In support of the assignment of error that the court erred in overruling the demurrer, it is insisted that the alleged false pretenses are biased upon written instruments, and that these should have been set out in the indictment.

We do not think so. The offense charged is a statutory one, and it was not essential to set out the identical language of the writings referred to. It was sufficient to set out the substance and purpose of these writings, and this was done. There was nothing about these instruments which would require the court to construe them.

At § 43 of the chapter on False Pretenses in 11 It. C. L., page 859, it is said that “where a written instrument is only a step in the transaction or an incident to the offense, a particular description thereof is unnecessary.” See also, Prewitt v. State, 76 Sou. 425; State v. Caldwell, 44 N. W. 711; State v. Western Union Tel. Co., 160 Ark. 444.

It is next insisted that the court had no jurisdiction, for the reason that the check in question, was issued in New York City, and was payable and was paid there. But the indictment alleges that the check, which was a thing of value, was obtained in Jefferson County, where the venue was laid, .-and the proof sustains that allegation. The check was mailed to and delivered in Jefferson County, and the testimony shows that the false representations which induced the mailing of the check to Jefferson County were made in and mailed from that county. The offense charged was that of obtaining a check, and the delivery thereof was in Jefferson County.

It is insisted that the demurrer should have been sustained because the indictment does not allege that the insurance company parted "with its money by reason of its belief in and its reliance upon the false pretenses. The allegation of the indictment is that “by color and means of which said false pretenses he, the said C. B. Norris, induced the said Metropolitan Life Insurance Company to- issue its bank check for the sum of $135.60, payable to Mary Jones.” We think this allegation sufficiently alleges that the false pretenses induced the company to issue and deliver its cheek.

It is insisted that the demurrer should have been sustained because the indictment shows on its face that the check was playable to a third person other than appellant and was not shown to have been indorsed by him, and that such a check is not a valuable security within the meaning of the statute under which the indictment was drawn.

The statute referred to is a very comprehensive one. It provides that “ every person who, with intent to defraud or cheat another, -shall designedly, by color of any false token or writing, or by any other false pretenses, * * * obtain¡ from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny and punished (accordingly. ” § 2449, C. & M. Digest.

The check was alleged to be of the value of its face, and the statute does not require that the ‘ ‘valuable thing” shall be obtained for one’s own self. It is sufficient that it be obtained from the owner with the intent to cheat and defraud the owner, and it is immaterial therefore that, in fraudulently causing" the check to be issued, appellant did not have himself named as the payee therein.

It is insisted that the testimony is insufficient to sustain the conviction. Answering this assignment of error, it may be said that it was shown that it was the custom of the manager of the insurance company in Pine Bluff, out of which office appellant operated as an agent, to deliver blanks upon which to miake proof of death when the report was received that a policyholder had died. The proof required by the insurance company before issuing a check in payment of a death claim consisted of a claimant’s statement, a statement of the physician attending the insured in. his last illness, and a statement on the part of the ag'ent assisting in mailing up the proof. When these proofs were received by the insurance company, and were found in proper form, and were approved by the general manager at Pine Bluff, a check was mailed to the manager at Pine Bluff through whose office the claim was received, and the check was delivered to the claimant by the agent who had made up the proofs. The agent’s statement on the death claim of Davis was identified by the insurance company’s manager at Pine Bluff as being in the handwriting of appellant. The policy in question was known as an industrial policy, and it was not required that the beneficiary be named in the policy, but the company accepted the claimant recommended by the agent. The agent’s statement, signed by appellant, named Mary Jones las the claimant to whom the check should be made payable. The statement signed by appellant recited that he had called on Dr. Spann and had verified the doctor’s statement. Dr. Spann testified that he did not know Sim Davis and had never treated him professionally, and that he had not signed the physician’s statement which bore his name.

Sim Davis, who was a colored man, testified that appellant delivered to him a policy in the insurance company, for which witness was to pay twenty cents per week, and that his payments were noted in a book given him for the purpose by the agent to whom the payments were made; that he got behind in his payments after maldng them for a year and a half, and that appellant came to him and took up his receipt book and the policy, and soon afterwards .appellant came to the home of witness and asked him to state, if any inquiry was made about the policy, that he (witness) had never had a policy, and that he was not related in any way to any woman named Mary Jones.

Appellant testified thiat a woman claiming to be a sister of the insured, who called herself Mary .Jones, produced the policy and receipt book and claimed the benefits under the policy, and that he, believing the statement of the woman to ibe true, followed the course pursued by all agents of the insurance company and filled out the agent’s statement, and when he had don,e so he turned the proof over to the manlager at Pine Bluff for the latter’s investigation, and the same was subsequently sent to New York by the manager, where a check was issued to Mary Jones and mailed to the manager at Pine Bluff for delivery to her. Appellant denied ever receiving or seeing the check. The manager of the insurance company testified that when appellant left the service of the company the records previously in appellant’s possession belonging to the company were surrendered, and there was a difference of fourteen weeks in the record kept by appellant and the receipt book belonging to Davis. The check issued in payment of the Davis policy was dated August 12, 1924, and Davis’ receipt book showed premiums paid to July 21, 1924.

The cashier of a bank in Pine Bluff testified that the check was deposited for collection in his bank by H. Alfred Lewis, whose signature the witness identified, and the check was indorsed with the names of Mary Jones, Lewis Brothers, undertakers, and H. Alfred Lewis, and that the check was paid, and the local bank received credit therefor, and the proceeds of the check were placed to the credit of the depositor. .

We third!; this testimony sufficient to connect appellant with the fraud practiced upon the insurance company and to support the conviction on the charge stated in the indictment.

It is insisted that the testimony does not show that the company issued and parted with the possession of the check in reliance upon anything which appellant did; that the proof -of death required the O. K. of the general manager at Pine Bluff, and this O. K. had been placed on the proof of death by the general manager, and that the payment would not have been made without this O. K.

We do not think it any defense for appellant to say that the manager at Pine Bluff did not sufficiently investigate the claim before approving it. The fact was established that appellant did an essential thing to induce the company to issue the'check by signing the agent’s statement, and, if this statement was made with knowledge of its falsity and for the fraudulent purpose of inducing the company to issue the check in payment of a fictitious claim, the proof is sufficient to sustain the charge, even though appellant’s statement as agent would not, of itself, have sufficed to induce the issuance of the check.

It is insisted that error was committed in admitting and in excluding 'certain testimony. It is first contended that the claimant’s statement and the physician’s statement were incompetent testimony, for the reason that they were not set out in extenso in the indictment. We have already said that it was not necessary to do this. These statements were only “steps in the transaction,” mere evidence in the case, and were sufficiently referred to in the indictment to show their relevancy in charging the statutory offense of obtaining a “thing of value” by false pretenses.

Testimony was admitted over appellant’s objection showing that several other false death claims had been presented for allowance and payment by the insurance company in the same manner as the Davis claim had been, in one of which the check had been made payable directly to H. Alfred Lewis, the man who indorsed and deposited the check in the local bank in payment of the Davis claim.

One of these claims was that for the death of Maggie McMorris, who testified that appellant delivered to her three policies, one for herself, one for her husband, and the third for her baby, and that a claim had been presented to the insurance company based upon her supposed death, and that appellant asked her, if any one inquired if she had been a policyholder in the Metropolitan Life Insurance Company, to answer “No,” and that*if she would do this appellant would make it all right with her and would return to her all the premiums she had ever paid. Her receipt hook showed that appellant had collected from her a premium in the week in which she was reported as having died.

Donie Whitfield, who was named as the claimant under the policy of Maggie McMorris, testified that she did not receive any part of the sum paid (by the company upon the supposed death of the insured, and that she knew nothing about the claim. Testimony in regard to other claims was of a substantially similar nature.

All of this testimony was objected to upon the ground that it was irrelevant, in that it was not shown in any case that appellant ever received the check issued in payment of any of these fraudulent claims. Appellant’s explanation was that he did no more than any other agent would have been required to do in assisting a claimant in presenting a claim.

Dealing with this testimony the court charged the jury as follows: “3. The court has admitted testimony of other offenses similar to the one charged-in the indictment. You will not ibe permitted to convict the defendant upon such testimony. Evidence of other similar offenses, if you believe others have been proven, are admitted solely for the purpose of showing design, particular intention-, knowledge, good or bad faith, and you should consider such evidence for this purpose and for this purpose alone.”

A general objection was made to this instruction, and a specific objection was made that there was not such proximity of time between the similar offenses to constitute a scheme.

We think the instruction was a proper one. It was the theory of the State that appellant was not only a party to a scheme to defraud the insurance company by collecting false claims, but that he was the party principally concerned in doing so, and that, although no check was ever traced into appellant’s hands, his part in the matter was not that of a dupe but was that of a principal, and the testimony was therefore competent as tending to show a design and scheme to defraud. Nor do we think the transactions were so remote in point of time as to make the proof thereof incompetent for that reason. It was not essential that the fraudulent claims should have been presented simultaneously. It might have been thought more feasible and less likely to lead to detection to permit a short interval of time to elapse between the collection of one claim and the presentation of another.

After the above testimony as to the other fraudulent claims had been • admitted, over appellant’s objection, he offered testimony tending to show that, after he had severed his connection with the insurance company, another fraudulent claim was presented. The exclusion of this testimony is assigned as error. But we think this was not error. There may have been others besides ■appellant in the scheme to defraud; but that would be no defense, nor would the fact that a fraudulent claim had been presented to which appellant was not a party be a defense. The testimony as to the other fraudulent ■claims was admitted to overcome the contention of appellant that he had acted in good faith in making up the proof in the Davis claim, and the fact tha't another.agent had at a later time presented another fraudulent claim would have no bearing on that question. Appellant had testified that the policy was presented to him by a woman calling herself Mary Jones, who represented that she was a sister of Davis, and appellant assumed that what the claimant said was true, and that he acted in good faith in making up her claim.

The State called as a witness a colored woman named Mary Jones, who lived at Altheianer, the place where Davis resided. This witness stated that she was not Davis’ sister, and had not made any claim to the proceeds of the policy.

This testimony does not appear to have been competent. Appellant did not identify this woman as the. woman who appeared before him. Her testimony was therefore purely negative. Any colored woman named Mary Jones could have given the same testimony. But, while the testimony was incompetent, we do not think it was prejudicial. As we have said, the testimony was purely negative, and proved only that the witness was not the person who had made the claim. Appellant did not contend that there was or could have been a legitimate claimant, because the insured was not dead, and the witness M]ary Jones proved -only that she was not la party to the fraud.

Numerous objections were made to the instructions given, and these assignments of error are discussed in the brief. The theory of the 'State’s case was stated in instruction numbered 1, which reads as follows: “If you believe from the 'evidence in this case beyond a reasonable doubt that the defendant, in Jefferson County, Arkansas, and within three years neat before the filing of the indictment herein, designing and intending to cheat and defraud the Metropolitan Life Insurance Company, a corporation organized under the laws of the State of New York and doing business in the State of Arkansas, out of its goods, moneys and property, wilfully, unlawfully, fraudulently, falsely, knowingly and feloniously represented and pretended to the said Metropolitan Life Insurance Company that Sim Davis died on August 6,1924; that Dr. C. E. Spann attended and treated the .said Sim Davis in his last illness; that Mary Jones was la sister to Sim Davis and was the beneficiary under the policy and entitled to receive the sum of $135.60 by reason of the death of 'Sim Diavis; that such representations so made were well known to the defendant Norris to be false and made wdth the unlawful, fraudulent and felonious intent to cheat and defraud the said Metropolitan Life Insurance Company; and that, in Jefferson County, by color and means of said false pretenses, the defendant obtained from the Metropolitan Life Insurance Company a check, the property o-f said company, in the sum of $135.60,. of the value of more than ten dollars, you will convict the defendant of the crime of false pretenses as charged in the indictment.”

This instruction is a correct declaration of the law as applied to the facts of this case. Answering the specific objections made to the instructions, it may be said that it does require the jury to find that the check was obtained, that its value was over ten dollars, and that the company was induced to issue and part with its possession by virtue of the false representations made concerning the death of the insured. The instruction did not require the jury to find that appellant actually obtained the money on the check, but it was not essential that this showing be made, as the charge was that he had obtained a check, which was itself a thing of value.

Other instructions announced familiar principles of law, and we think no useful purpose would be served in reviewing them.

Appellant’s theory of the case was presented under instructions which would have required the jury to acquit if the finding had been made that his connection with the presentation of the claim was in good faith or in ignorance of the fraud which was contemplated.

Upon the whole case we find no prejudicial error, and the judgment will.therefore be affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Legg v. State.
    Opinion delivered February 15, 1926.
    Criminal law—jury question.—In a prosecution for aiding a sharecropper in embezzling cotton belonging to the landowner, where the evidence was in conflict as to whether the person alleged to have been aided was an employee or a tenant, it was error to instruct the jury that he was an employee.
    Appeal from Lee Circuit Court; E. D. Robertson, Judge;
    reversed.

      R. D. Smith, for appellant.

      H. W. Applegate, Attorney General, and. Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Lee County for unlawfully and feloniously aiding and abetting Doc Howard in embezzling 1,300 pounds of seed cotton, of the value of $90, belonging to Alfred Sohm, and was adjudged to serve a term of one year in the State Penitentiary as a punishment therefor, from which is this appeal.

The seed cotton in question was raised by Doc Howard on Alfred Sohm’s farm in 1924. On November 5, 1924, appellant hauled the cotton to market for Howard, who sold same.

The testimony was in conflict as to whether the title and right to sell the cotton was in Sohm or Howard, being dependent upon the contract between them.

The State attempted to show by John J. Hughes, who was Sohm’s agent, that under the agreement Howard was to receive a part of the crop as wages for his work, but his testimony was not certain and definite as to the terms of the contract.

Appellant introduced Doc Howard, who testified that he was to pay one-half of the crop to Sohm for the use of the land, tools, and team which Sohm, through his agent, furnished him, and that, at the time he sold the cotton, he owed Sohm nothing. He also testified that he employed appellant to haul the cotton to market, telling him that he owned same.

Appellant testified that he, hauled the cotton for Doe Howard; that he thought the cotton belonged to Howard; and that he received this information from Howard.

The court instructed the jury upon the theory that a»share-cropper is, as a matter of law, an employee, regardless of the terms of his contract. This court decided otherwise in the case of Barnhardt v. State, 169 Ark. 567. In keeping with the law announced in that case, appellant requested the court to instruct the jury as follows: “You are instructed that if you find from the evidence that Sohm and Howard entered into an a,gTeement whereby Sohm rented ¡to Howard the land, teams, and feed on which the cotton alleged to have been embezzled was grown, and that said Howard agreed to pay the said Sohm one-half of all cotton raised on said lands as rent therefor, then your verdict will be not guilty, notwithstanding the fact that you find that the said Howard failed to perform his part of the agreement. ’ ’ This request was refused by the court over the objection and exception of appellant. The trial court erred in refusing to give this instruction to the jury.

The trial court also committed reversible error in giving the following instruction to the jury:

“You are instructed that, under the law, one who contracts to make la crop for a share thereof under such a contract as has been testified to in this case as existing between Alfred Sohm and Doc Howard, is an employee and not a tenant, and that the title to the crop produced by such employee is in the employer and not in the employee. ’ ’

The evidence was in dispute as to the terms of the contract, so it was improper for the court to assume and tell the jury that Doc Howard was an employee and not a tenant of Alfred Sohm.

On account of the errors indicated the judgment is reversed, and the cause remanded for a new trial.


text:
    Central Coal & Coke Company v. Porter.
    Opinion delivered February 15, 1926.
    1. Negligence—attractive nuisance doctrine.—Where an owner permits to remain unguarded on his premises anything which is attractive to children and from which injury may reasonably be anticipated, he will be liable if a child is injured thereby.
    2. Negligence—jury questions.—The questions whether defendant coal company maintained an attractive nuisance upon its premises, and whether the children were attracted to a place of danger thereby, held under the evidence to be for the jury.
    3. Master and servant—evidence.'—A finding that plaintiff’s intestate was an employee of defendant company held sustained by the evidence.
    4. Master and servant—contributory negligence.—Where human life is involved, an employee who is called upon to act quickly without time to consider results is not guilty of contributory negligence, unless his act is rash and reckless.
    5. Master and servant—assumed risk.—An employee who, in order to save life, acted without recklessness in an extraordinary emergency caused by his employer’s negligence, and was killed, will not be held to have assumed such risk, it not being one of the ordinary risks of his employment.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judge;
    affirmed.

      John W. Goolsby, for appellant.

      Evans S Evans, for appellee.
   Humphreys, J.

Appellee brought suit against appellant in his own right and as administrator for the estate of his minor son for damages in the sum of $3,000 on account of the death of his son caused through the alleged negligence of appellant in maintaining an attractive nuisiance on its premises. Appellant denied the material allegations in the complaint, and interposed the further defenses of assumed risk and contributory negligence on the part of the deceased.

The cause was submitted to a jury upon the pleadings, the testimony adduced by each party, and the instructions of the court, which resulted in a verdict and judgment in favor of appellee for $3,000, from which is this appeal. The facts are practically undisputed, except as to whether or not the deceased was in the employment of appellant at the time of his death. Appellant is the owner of a large number of coal mines, and owned and operated a large mine near Huntington in Sebastian County, known as mine No. 6. On account of the size of the mine and the accumulation of gas in the same, the State Mine Inspector required appellant to dig an air-shaft about one-half mile from the tipple, or main entrance, to secure proper ventilation and to provide an additional entrance and exit for the miners. The air-shaft or mansbaft dug pursuant to the order was eight feet square and 180 feet deep. One-half of the space in the shaft was occupied by a stairway running from the top to the bottom of the shaft. This shaft was made safe for the miners to ascend and descend with slats and rails. The other part of the shaft was left open. A plank wall was built around the shaft with a roof over it. A floor was laid inside the wall over the mouth of the shaft, an opening being left for entry to the stairway. The wall had a door in it to accommodate the miners, which was constructed so that it would swing to or close when any one passed through it. To more actually visualize the situation, it may be said that the airshaft had a small house over it, which could be entered through a door that would shut of its own accord when one passed through it. The airshaft was located upon a large tract of land, either an 80 or 160-acre tract, which was used by appellant for a mule pasture. The tract of land had a good fence around it, with stiles and gates provided for the use of any one who desired to go through the pasture to the mine, the postoffice, or other places in the neighborhood. The shaft was near the center of this tract of land, and was dug in a pathway which had been made by persons passing through the tract. When the house was constructed over the shaft, the pathway was changed so as to run around it. The shaft house could not be seen by any one standing outside the fence inclosing the land on account of the underbrush and growing trees upon it. Quite a lot of acreage near the shaft and small - house was covered with a blackberry thicket. The . people in that vicinity had picked blackberries upon the |land for many years without objection or hindrance by 'appellant. On April 1, 1922, the mine was shut down on account of a strike, and was not operated for several months. During this period the door to the small house over the shaft was propped open and remained in that condition until after the death of appellee’s son. While the mine was shut down, watchmen or caretakers were employed by the superintendent to look after it. They were stationed at the tipple, or main entrance of the mine. Appellee was employed as one of the watchmen \ or caretakers.' These caretakers worked in shifts of [eight hours each. Appellee testified that on several occasions he had to go away from home, and when it became necessary for him to do so he would leave his son in care of the mine as watchman or caretaker; that he went ¿to Fort Smith on one occasion, and the superintendent Imade no objection when he told him he had left his son |in his place. Testimony was also introduced by appellee showing that other watchmen or caretakers had done the same thing when it was necessary for them to be absent. On the 25th day of June, 1922, appellee had to go away, and he left his son, Roland Porter, in charge of said mine. Roland was in his eighteenth year, and competent to perform the duties of watchman. The superintendent came by and spent a part of the morning with him, and made no objection to his being there. Later in the day he departed, leaving the boy in charge. After the mine was shut down, the air intake was shut off by water; and poisonous gases of a deadly nature were formed, which found their way to the airshaft in the woodland about one-half mile from the tipple, or main entrance. On that day Yancy Roberts, a boy ten years Íof age, and a number of other children younger than he, were picking blackberries near the entrance of the shaft. They were attracted to the house over the shaft, and Yancy entered the door in the wall and sat down upon the floor at the head of the stairway. In a few minutes he was overcome by the poisonous gases and fell down the stairway, lodging on one of the landings, where he subsequently died from the effects of the fumes. His screams attracted the attention of the other children, who attempted to rescue him, but were overcome and fell down the stairway into the shaft. After four children had fallen down the stairway a considerable distance, John Roberts and Bob Dunlap appeared upon the scene and attempted to rescue the children. Although strong and able-bodied, they were overcome with the gases also. Roland Porter received information that these people had fallen into the shaft, and hurried to their assistance. When he arrived, two of the children were hallowing, and one of the little girls was hanging over the stairway into the opening of the airshaft and was about to fall to the bottom thereof. Bob Dunlap was nearest the top, having descended two flights of steps. Roland immediately descended into the shaft and succeeded in pulling Bob Dunlap to the surface. After walking around for a while and freeing his lungs from the gas, he decided to go down and pull the little Robertson girl, whose body was hanging over the edge of the stairway, back toward the wall in order to prevent her from falling to the bottom of the airshaft. She was lying quite a distance down the stairway, but Roland concluded he could hold his breath long enough to perform this act. At the suggestion of a bystander he permitted those present to tie a rope around his waist to prevent him from falling over the stairway into the shaft in case he should be overcome by the gas. He reached the child and succeeded in removing her body back to the wall, but at that moment was overcome and could not return. He gave voice to conscious suffering by groaning before he died. Only one child who entered the shaft survived.

Appellee’s case is bottomed on what is known in law as the turntable or attractive nuisance doctrine, which has been succinctly stated in the following language: “Where an owner permits to remain unguarded on his premises anything dangerous which is attractive to children and from which injury may reasonably be anticipated, he will be liable if a child is injured thereby. ’ ’ Brinkley Car Company v. Cooper, 60 Ark. 545; Nashville Lumber Co. v. Busbee, 100 Ark. 76. Under our decisions and the cases cited in support of them, this humane doctrine is applicable alike to children, whether trespassing or invited upon the lands of another. In the case of United Zinc & Chemical Company v. Britt, 258 U. S. 268, the court applied the rule in such manner as to withdraw its protection from children who were not attracted upon the land of another by the nuisance itself. Appellant herein relied upon the Britt case, directing its testimony and formulating its requested instructions upon the theory that it was exempt from liability unless the children were attracted upon the premises and to the place of danger as well by the house over the airshaft. Even under the rule announced in the Britt case, which it is unnecessary for us to approve or disapprove in determining the issue now before us, appellant has failed to bring itself within its protection, for the undisputed testimony in the instant ease reveals that the children were not trespassers upon the premises when attracted to the place of danger by the little house over the airshaft. They were licensees. For many years the people in that vicinity, including men, women, and children, were allowed without objection or hindrance to go up on the premises for the purpose of picking blackberries. It was estimated that the blackberry thicket upon the place near the little house over the shaft covered about twenty acres. In addition to this, stiles and gates were built in the outside fence for the convenience of any one desiring to enter or pass through the premises, and the little house over the airshaft was built in a pathway made by the people who frequented said premises. The situation was just as if the children had been enticed upon the premises from the outside by the house, since they were allowed to enter the premises, where they would likely be attracted to the place of danger by the house. The questions of whether appellant maintained an attractive nuisance upon its premises and whether the children were attracted to the place of danger thereby, were submitted to the jury under correct instructions, and there is substantial evidence in the record tending to support the finding of the jury that the house was sufficiently attractive to entice the children to the place of danger and to suggest to appellant the probability of accident, and that it did so, resulting in the tragedy. The very shaft in question was constructed to permit circulation and purify the air in the mine so that the lives of miners might not be endangered on account of the formation of dangerous gases in the mine. The superintendent knew that the air intake had been closed by the accumulation of water in the mine, that the fans had been closed down, and that poisonous gases would be formed in the mine, which would necessarily find an outlet through this opening in the earth. The testimony also reveals that the door of the house over the airshaft was left open and even propped open during the time the mine was shut down. The house with the open door offered no protection to children allowed upon the premises against this inviting’ and deadly danger.

Appellants contend however that, even if negligent in maintaining an attractive nuisance, this did not justify Roland Porter in going to the rescue of the children who were screaming, groaning, and dying in the airshaft. Having entrapped these children through negligence, the duty rested upon appellant to resort to extraordinary means, if necessary, to save their lives. No less duty rested upon its employees. Appellant seeks to escape liability and obtain ia reversal of the judgment upon the grounds: First, that Roland Porter was not its employee; and second, that he was guilty of contributory negligence and assumed the risk in attempting the rescue.

(1) . We cannot agree with appellant’s interpretation of the evidence to the effect that it indisputably shows that Boland Porter was not its employee. While not a regularly employed watchman, the testimony tends to show that his services as a substitute watchman were accepted by the superintendent of the mine during his father’s absence. It was shown that another watchman had substituted his son for a considerable length of time, and that appellee had done so on a former occasion with the knowledge of the superintendent. The superintendent was frequently at the mine while it was shut down, and on the morning of the tragedy had visited the mine and knew that Boland was in charge thereof. He went away without making any objection to him acting as a substitute watchman for his father. The issue of whether or not Boland Porter was an employee of appellant was submitted to the jury under a proper instruction, and appellant is bound by the finding of the jury to the effect that he was.

(2) . Under the rescue doctrine, human life being involved, a liberal rule prevails with relation to contributory negligence. In such cases one is called upon to act quickly without much time to consider results, and is not held by the law to as strict account as when performing ordinary acts in doing his work. The law excuses him when engaged in extraordinary duties or emergencies to save the life of human beings, unless his act is rash and reckless. The rescue doctrine is well stated in syllabus No. 1 in the case of Corbin v. Philadelphia, 195 Pa. 461, 78 A. S. R. 825, which is as follows: “A rescuer who, from the most unselfish motives, prompted by the noblest impulses that can impel man to deeds of heroism, faces deadly peril, ought not to hear from the law words of condemnation of his bravery, because he rushes into danger to snatch from it the life of a fellow creature, imperiled by the negligence, of another, but he should rather listen to words of approval unless regretfully withheld on account of the unmistakable evidence of his riashness and imprudence.” Appellant asked for no instruction submitting the issue of contributory negligence to tbe jury, but did ask one submitting the issue of assumed risk, which was refused by the court over its objection and exception. This instruction, however, did not embody the idea that a rescuer does not assume extraordinary risks when performing emergency acts to save life unless they are rash and reckless acts on his part. Under his employment a laborer assumes only ordinary-risks incident to the work in which he is engaged. We see no reason why the rescue doctrine should not be applied to the assumption of risks in the same manner that it is applied in cases of alleged contributory negligence. It cannot be said that the undisputed testimony in this case shows that the acts of Roland Porter were rash and reckless. He had succeeded in rescuing one and might well have concluded that he could prevent the little Robertson girl from falling to ■ the bottom of the opening without encountering certain death on his part. The instruction requested by appellant did not correctly state the law applicable to the facts in the case, so the trial court did not err in refusing to give it.

. Appellant also contends for a reversal of the judgment herein because the court allowed the deposition of Minnie Robertson to be read in evidence. The objection made to the introduction of the deposition was that the officer before whom it was taken transmitted it to the attorney for appellee, instead of to the clerk of the court. The deposition was taken under an agreement which provides: “We waive all formalities as to the manner of taking, transcribing, and transmitting of said depositions.” The deposition was properly admitted under the agreement.

Appellant also contends for a reversal of the judgment because the trial court allowed appellee to introduce certain pieces of evidence, which we have carefully read. We think each piece of evidence objected to was responsive to the issue joined, and therefore admissible.

No errors appearing in the record, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Western Union Telegraph Company v. T. C. Davis Cotton Company.
    Opinion delivered February 22, 1926.
    1. Appeal and error—question not raised below.—Objection that there is neither allegation nor proof as to plaintiff’s identity, whether a partnership, an individual or a corporatioh, cannot be raised for the first time on appeal.
    2. Judgment—identity of party.—A judgment in favor of T. C. Davis & Co., if insufficient to identify the company, is valid at least as to T. C. Davis.
    3. Telegraphs and telephones—remedies of sendee for mistake in transmitting message.—While the sendee of a telegraphic message may sue the sender for breach of a contract based upon a message incorrectly transmitted, he is not limited to that remedy, but may sue the telegraph company for damages sustained by reason of its negligent act in transmitting the message.
    4. Telegraph and telephones—-negligence in transmitting message—damages.—Where the sender of a telegram offered to buy cotton at 150 points above the New York quotations for a certain month, but the message as transmitted read 525 points, whereupon the sendee -bought cotton to fill the order at 300 points above the New York quotations, which the sender refused to receive, the latter was entitled to recover from the telegraph company the damage sustained in getting relieved from such purchase.
    5. Telegraphs and telephones—limitation of damages.—Where a telegraph company limited its liability for negligence in the transmission of a message to $500, it was error to add interest to that sum in a judgment for damages.
    Appeal from Mississippi Circuit Court, Chickasawba District; G. E. Keck, Judge;
    modified.

      Francis R. Stark, Rose, Hemingway, Camtrell <& Loughborough*and Huddleston<& Little, for appellant.

      G. W. Rarham and T. J. Crowder, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover damages alleged to have been sustained by reason of negligence in the transmission of a telegraphic message from New Orleans, Louisiana, to Blytheville, Arkansas. Appellee is described in the complaint merely as ‘ ‘ T. C. Davis 'Cotton Company, plaintiff, ’ ’ without stating whether the plaintiff is a corporation or a partnership or an individual. No objection, however, was raised concerning the right of appellee to sue. Appellant answered, and went to trial upon the issues of fact, and there was a verdict in-appellee’s favor for the recovery of the sum of $500 and interest at six per cent, from the date the alleged cause of action arose. The case was tried upon an agreed statement of facts, and, according to the recitals of the agreement, appellee was engaged in the cotton business at Blythe-ville, and W. A. Lighter & Company, cotton merchants, were engaged in business at New Orleans, and on September 12, 1922, Lighter & Company delivered to appellant at one -of its offices in New Orleans a telegraphic message to bé transmitted to appellee at Blytheville proposing to buy a specified lot of cotton. It was a code message, and the word “blush” wias used, indicating, according to the cipher ©ode, a price for the cotton of 150 points above the New York market quotations for December. In the transmission of the message there was an error made by appellant’s servants in changing the word “blush” to the word “bluish,” which latter word under the cipher code meant '525 points above the New York quotations for December. Immediately upon receipt of the message, appellee, without any information as to the error in transmission, wired his acceptance to Lighter & Company, thus closing the contract. Appellee thereupon entered into a contract for the purchase of cotton futures in order to hedge against loss and paid out $344:80, and appellee also, in preparation of fulfilling his contract with Lighter & Company, purchased from T. E. Griffin & Company, of Blytheville, 200bales of cotton, paying therefor 300 points above the New York quotations, which was above the market price of the kind of cotton specified. Appellee by letter confirmed his telegram of acceptance, and it was immediately developed in the correspondence that a mistake had been made. There were negotiations between appellee and Lighter & Company for a settlement, of the loss, and the latter declined to accept the cotton from appellee at the price indicated in the telegram as delivered—that is to say, 525 points above the New York market. Bnt it was agreed between them that appellee should sue appellant for the damages sustained by reason of the non-performance of the contract. Appellee was unable to use the cotton after the refusal of Lighter & Company to accept it at the price named, and he was compelled to sustain a loss of $500 in getting relieved from his contract of purchase from Griffin & Company.

Appellee in his complaint claimed damages on the item of $344.80, the amount expended in buying futures, and $1,990, profits which he would have earned if the contract according to the telegram had been performed, and $500 for loss sustained by having to pay Griffin & Company for release from the contract of purchase.

Appellant answered denying the allegations as to negligence and as to damages resulting from the error in transmission of the message, and also pleaded a clause in the contract which limited liability on an unrepeated message to the sum of $500. ■

The trial court upheld appellant’s pleas as to limitation of liability and confined the recovery of damages to the sum of $500, but, as before stated, allowed interest thereon from the accrual of the cause of action down to the date of judgment. This ruling being in. favor of appellant, and there being no cross appeal, it is unnecessary to say anything about that feature of the case except as to the recovery of interest, which will be mentioned later.

It is contended by appellant, in the first place, that appellee does not show any right to maintain this action, in that there is neither allegation nor proof as to appellee’s identity, whether a partnership or an individual or a corporation. This question was not raised below, and it is too late to raise it now for the first time. Spaulding Mfg. Co. v. Godbold, 92 Ark. 63. The effect of the agreed statement of facts, as signed by appellant’s counsel, was to recognize that appellee was an entity capable of suing in the courts, and the identity of appellee is not important, since the judgment has been rendered. There is still another reason why the plea is not good at this time, for the name of T. C. Davis is used in connection with the identification of the plaintiff and affords sufficient identification of him as the plaintiff, treating the remainder of the descriptive words as being without force. Percifull v. Platt, 36 Ark. 456.

It is next contended that the negligence of appellant’s servants was not the proximate cause of appellee’s damage, and that appellee is entitled to recover only nominal damages. Counsel rely upon the decision of this court in Des Arc Oil Mill v. Western Union Tel. Co. 132 Ark. 335, where we decided that a public carrier in the transmission of a telegraphic message is the agent of the sender, and that “a party making an offer’ by telegraph is responsible for the correct transmission of his message and is bound by it in the terms in which it is delivered to the party addressed.” We do not think that the decision in the case cited controls the present case. In that case the plaintiff was the sender of the message which proposed the sale of cottonseed at the price of $64, indicated by a code word. There was an error which changed the word so as to indicate a price of $63, and, without knowledge of the error, the sendee of the message accepted the offer. In later correspondence between the parties, the error was discovered, the same as in the present case, and the sender of the message conceded its obligation to perform the contract and furnished the stipulated amount of cottonseed at the lower price indicated in the message. The sender then sued for damages on account of the loss incurred in being compelled to comply with the contract which he had not intended to make. We held that the sender of the message was entitled to recover because he had been unwillingly bound to a contract by the negligent act of the carrier. In disposing of the case, we said: “The true rule is, we think, that announced in the majority of the cases, that, as between the sender and sendee, the telegraph company is the agent of the former, who is bound by any mistake made in the transmission of a message, though the sendee may, under proper circumstances, maintain an action against the telegraph company for damages resulting in violation of the public duty, which it owes as a carrier to the sendee as well as to the sender. ’ ’ Now, the difference in the present case is that plaintiff (appellee) was the sendee and that the sender of the message, though bound by the contract in accordance with the law announced in the case cited, refused to perform it. Appellee had a right of action, it is true, against Lighter & Company, the sender of the message, for a breach of the contract, but he also had a right of action against the carrier for a violation of public duty, as stated in the case cited above. If there was in fact a right of action for a violation of this duty, the extent of the recovery of damages from appellant on account of that violation is not restricted to nominal damages merely because the actual damages might have been recovered from the sender who violated the contract. Appellee had a right of action against each of the parties, one against the sender of the message for a breach of contract, and the other against the public carrier for a violation of its duty which it owed to the sendee óf the message. There could be but one recovery, and appellee was put to his election as to which of the parties he should hold liable for damages. But appellee was not bound to exhaust his remedy against the sender of the message before attempting to hold the public carrier liable for the consequences of its negligent act. Our conclusion is that we are not out of harmony with the decision in Des Arc Oil Mill v. Western Union Tel. Co., supra, in holding that appellant in the present case is responsible to appellee for the damages actually sustained.

It is argued that neither of the items of damages claimed by appellee resultedproximatelyfrom appellant’s negligence. We pass over without comment two of the items involved, inasmuch as we have reached the conclusion that the $500 item may properly be treated as an item of damages proximately resulting from the negligence of appellant. It is contended that this item was not recoverable because the loss occurred as the result of a collateral undertaking with another party, and that it is the same as if the damage had been caused by the intervening act of a third person, and not directly from an act of negligence of appellant. Counsel rely upon some of our decisions holding that injury resulting from an intervening act of a third person is not recoverable against a defendant on -account of negligence. Martin v. Railway Co., 55 Ark. 510; James v. James, 58 Ark. 157; Gage v. Harvey, 66 Ark. 68. The cases .just cited have no application here, for the injury -did not result from the intervening act of -a third person, but the injury flowed directly from the negligent act of appellant’s agents in making an error in the telegram. Appellee was forced to buy cotton after accepting the contract at the high price offered by the sender of the message, and was forced to go into the market and buy cotton in order to be able to perform the contract. In doing so he bought 200 bales of cotton from Griffin & 'Company at a price above the market value, and -sustained a loss in buying it in the sum of $500. It is true he paid the $500- to Griffin & 'Company to be relieved from his contract of purchase, but this sum represented the difference between the market price and the price he had agreed to pay Griffin & Company for the cotton, therefore it was an injury which directly flowed from the negligence of appellant in inducing him to believe that he was offered a price considerably above the market price. In -other wor-ds, if he had not been informed by the message that he was getting 525 points above the New York market quotations, he would not have paid 300 points above the -quotations.

Finally, it is contended that the court erred in adding interest, and in this we are of the opinion that appellant is correct. Under the contract the amount of recovery for negligence ill transmitting an unrepeated message is the sum of $500. Liability for unliquidated damages does not bear interest, but the trial jury may consider the delay and add interest as compensation therefor in addi-. tion to the damages sustained at the time of the accrual of the cause of action. St. L. I. M. & S. Ry. Co. v. Cleere, 76 Ark. 377. The total damages are appraised at the time of the rendition of the judgment, and the restriction is placed in the contract upon the amount of damages to be recovered at that time. In other words, the judgment under "the contract cannot exceed $500, hence the trial jury or the court had no right to include any element of damages which would raise the sum above that amount.

The judgment will be modified by striking out the excess above $500. It is so ordered.


text:
    Oliver v. Hartzell.
    Opinion delivered February 22, 1926.

      X. Landlord and tenant—implied warranty of suitableness.—In a lease of the basement of a hotel for use as barber shop, where • there was no express warranty of the fitness of the premises for use as a barber shop, there was no implied warranty of suitableness of the premises, and, in the absence of fraud or concealment, the lessee took his lease at his peril.
    2. Landlord and tenant—implied warranty—uncompleted building.—The rule that there is no implied warranty of suitableness in a lease of a hotel basement for a barber shop applies though the building was not completed when the lease was entered into, if the work had progressed sufficiently near to completion to enable the lessee to ascertain - its suitableness for use as a barber shop.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    reversed.

      Phil McNemer, for appellant.

      W. A. Leach, for appellee.
   McCulloch, C. J.

Appellant is the owner of a hotel building in Stuttgart, Arkansas, which he constructed in the year 1922 and the-early part of 1923, and on January 17, 1923, he entered into a contract with appellee for the lease to the latter of a large room in the basement for use as a barber shop. The lease was for a term of ten years, beginning with the completion of the hotel building, and specified a monthly rental of seventy-five dollars. The contract contained a stipulation that the lessor was to furnish heat and water and install necessary shelving in bathrooms and storage closet. The contract contained no express warranty as to the fitness of the room for the intended use, nor did it contain any agreement on the part of the lessor to make repairs. The building was not complete at the time the contract between the parties was entered into. The basement room leased to appellee was incomplete to the extent that the concrete floor had not been laid and the plastering had not been put on part of the wall. Appellee moved in under the lease on March 1 and occupied the room as a barber shop until the latter part of July, 1923, when he moved out, and refused to pay the rent accruing thereafter.

Appellant instituted this action at law against appellee to recover rents, and appellee filed his answer and cross-complaint, alleging breach of the contract of rental with reference to the fitness of the room for occupancy as a barber shop. He also alleged in his cross-complaint that, on account of the condition of the floor, water seeped into the room after heavy rains, and that appellant failed to furnish proper appliances so as to afford sufficient hot water for use in the operation of the barber shop. He prayed for cancellation of the contract, and on his motion the cause was transferred to the chancery court, and proceeded there to a final decree dismissing appellant’s complaint for want of equity, and granting the relief to appellee prayed for in his cross-complaint.

The proof adduced in the case showed that after heavy rains there was a seepage of water into the basement occupied by appellee so as to cover a space of about twelve feet between two of the barber’s chairs to a depth of half an inch to an inch. There is a conflict as to the depth of the water which seeped in, and some little conflict as to the frequency of the occurrences. Appellee’s testimony was to the effect that the water seeped in eight or ten times during the five months he occupied the room. Witnesses introduced by appellee also testified that at times water and gas “belched up” from the sewer connections, especially after rains, but there was no allegation in the complaint with respect to this defect, and there was nothing to put appellant on notice that that was to be made an issue in the case, hence it was not noticed by the chancellor in his findings of fact, and will not be noticed here. There was also a conflict in the testimony as to the issue whether or not appellant had failed to furnish hot water. It is undisputed that there was some trouble for a time after appellee moved into the room and began operation of the barber shop about a sufficient quantity of hot water, and that appellee made complaint to appellant about it, and that the latter took steps to repair the defect. The hot water pipe was changed to a direct connection with the boiler, and appellant testified. that no further complaint was made to him about it. The chancellor made no finding upon the issue as to failure to furnish hot water, and we must assume from the fact that he based his decision on other grounds that he found that the charge in the complaint in that respect was not sustained by the evidence. We do not think that the preponderance of the evidence is against the finding of the chancellor on that issue.

The reasons stated by the chancellor for his decree are that there was an implied warranty as to the fitness of the room for use as a barber shop, and that the room was unfit for that purpose on account of the frequent flooding of the floor with water. .There was no express warranty of the fitness of the premises for use as a barber shop, and, according to the great weight of authority,,/ there is no implied warranty of the suitableness of leased premises for the intended use. - There is some conflict in the authorities, but this court has taken a definite stand on the question in the case of Little Rock Ice Co. v. Consumers’ Ice Co., 114 Ark. 532. In the opinion, after reviewing the authorities on the subject, it was said: “In other words, in the absence of fraud or concealment, the tenant leases at his peril, and the rule in the nature of caveat emptor throws upon the lessee the responsibility of examining the demised premises for defects and providing against their consequences, before he enters into the lease. ” It is contended, however, that the rule of caveat emptor does not apply where the building is incomplete at the time the lease is entered into, and the lessee has no opportunity to make examination for defects. That exception may (be a sound one in case the building is so far lacking in completeness that the lessee has no opportunity to determine its fitness for the intended use, and that thereafter faulty construction occurs so as to render the premises unfit. The mere fact that the building’ is not entirely complete affords no reasonable grounds for refusing to apply the rule of caveat emptor, if the work has progressed sufficiently near to completion to afford an opportunity to the lessee to ascertain its suitableness for the use for which he intended it. We think that is the true test, and it is the one sustained by authorities. Wilkinson v. Clauson, 29 Minn. 91; Bently v. Taylor, 39 N. W. (Iowa) 267. The application of this rule leads to the conclusion that there was no implied warranty in the present case. Appellee had an opportunity to inspect the premises and did so, and he could see just what the room would be when complete. There is no proof- of any misrepresentation, nor is there any proof that there was any faulty construction. The room was completed, for aught that appears to the contrary, in accordance with the plans and the indications which appellee necessarily observed when inspecting the room. He knew that there was nothing more to 'be done to the floor than to spread the concrete—no further provision for keeping out seep water—so, when he entered into the lease, he took his chances on having the water seep through. In other words, we find nothing in the facts of this case to take it out of the operation of the rule established by this court, as well as by most of the other courts, that in a lease of a building or a portion thereof there is no implied warranty of fitness for the use to which it is intended.

The chancery court reached the wrong conclusion in the case, and the decree is reversed, and the cause remanded with directions to render a decree in favor of appellant for the amount of accrued rent.


text:
    O’Leary Produce Company v. Pride.
    Opinion delivered February 22, 1926.
    Sales—implied warranty—waiver.—Where the buyer of strawberries which were sold without express warranty accepted them with knowledge as to their condition, he will be held to have waived an implied warranty as to their condition.
    Appeal from Sebastian Circuit Court, Fort Smith District;■ John E. Tatum, Judge;
    affirmed.

      Daily (& Woods, for appellant.

      Lake, Lake & Carlton and John D. Arbuckle, for appellee.
   McCulloch, C. J.

Appellee has been engaged in the business of buying and shipping strawberries at DeQueen, Arkansas, and he sold and shipped to appellant, at Fort Smith, on order, twenty-five crates of strawberries at the agreed price of six dollars per crate. Appellant received and opened the crates and put the berries on sale, but claims that they were badly damaged and unsalable, and refused to pay for them. This is an action instituted by appellee against appellant to recover the price.

There is a conflict in the testimony as to the condition of the berries. Appellee introduced considerable testimony to the effect that the berries, when shipped at DeQueen, were in such condition as to reach destination in good order and in salable condition. The testimony-adduced by appellant is to the effect that the berries were in poor condition on arrival at Fort Smith, and were unsalable; that appellant discovered the condition of the berries as soon as they were delivered by the express company, and that appellant’s agent called the attention of the express -agent after the delivery to the fact that the berries were in bad condition, and that the agent made an indorsement on the receipt for payment of charges that the berries were “more or less overripe and moulded. ’ ’

According to the testimony, appellant put the berries on sale and made sales of many crates to retail dealers, but all were returned because o,f the fact that the berries were unsalable. Two or three crates were sold at a small sum to a peddler and the remainder was finally dumped as being worthless. Appellant did not notify appellee of the condition of the berries until two or three weeks later, and then refused payment.

There are numerous assignments of error with respect to the introduction of testimony, and also as to objections to the court’s charge, -but we are of the opinion on the undisputed evidence in the case that appellant is liable; therefore it is unnecessary to discuss any of the assignments of error.

It is undisputed that there was no express warranty as to the quality of the berries, and that the shipment by the carrier was directed to appellant, so that the latter had' an opportunity to inspect the berries, and did inspect the same and found them to be in bad condition. Appellant accepted the berries with knowledge of the quality, and thereby waived the implied breach of warranty. The case is controlled by our decision in Courtesy Flour Co. v. Westbrook, 146 Ark. 17, where we said:

“The law on the subject is that, where chattels are purchased under express warranty as to quality, the purchaser may rescind on discovering the inferior quality of the article sold, but is not bound to do so, and, on the contrary, may retain the articles purchased and sue on the warranty or recoup the damages when sued for the price. In case, however, the contract is to deliver goods of a particular description or quality without express warranty, and the purchaser accepts them after inspection and discovery of the inferior quality, or after having had a fair opportunity to make such inspection, he waives the right to claim damages for defects or inferiority of the goods sold.”

We also quoted with approval the following from the Kentucky case of Dana v. Boyd, 2 J. J. Marsh. 588: “To this there may be exceptions, as when the defects are discovered afterwards; in which case he must, on the discovery thereof, offer to restore, or where there has been fraud in concealing or misrepresenting the bad qualities of the articles, or an express warranty. But, where the defects are palpable and are perceived at the time, he must reject the goods and set aside the contract in toto, and go for their full value, and cannot be allowed to accept and then bring his action for the bad quality.”

Learned counsel for appellant insist that the doctrine of the case cited above is not applicable for the reason that there was no opportunity for inspection. Counsel are in error in this, for there is no such distinction. The goods were shipped direct to appellant, and, when presented by the carrier’s agent for delivery to appellant, the condition of the berries was discovered. Then was the time for appellant to reject the shipment, otherwise he must be deemed to have waived the breach of implied warranty as to quality. There was further discussion of this doctrine in the recent case of Keith v. Fowler, 169 Ark. 176, and the rule announced in Courtesy Flour Co. v. Westbrook, supra, was reaffirmed.

The judgment of the circuit court being’ correct upon the undisputed evidence', any error in the record, if any be found, could not have been prejudicial to appellant’s rights. The judgment is therefore affirmed.


text:
    Carnahan v. Lyman Real Estate Company.
    Opinion delivered February 22, 1926.
    1. Brokers—duty toward principal.—It is the duty of a real estate broker or agent to make disclosure of the terms of pending negotiations, so that the seller may act advisedly in determining whether or not a proposal is satisfactory; and, upon a failure to make a correct disclosure of material facts concerning the negotiations, the broker or agent is not entitled to a commission, even though he produced a purchaser, ready, willing and able to purchase.
    2. Brokers—right to commission—jury question.—It was error to direct a verdict in favor of a real estate broker for the amount of his commission where there was evidence tending to prove that the broker had falsely represented to his principal that the proposed purchaser had made a cash deposit, when he had deposited a worthless check.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      J. A. Gallaher and Roy Gean, for appellant.

      Jas. Seaborn Holt, for appellee.
   McCulloch, C. J.

Appellant is the owner of certain real estate in the city of Fort Smith, and he listed the same with appellee for sale at a specified price. Shortly thereafter, appellee found a prospective purchaser in the pérson of Albert J. Hess, and secured from Hess a proposition in writing to purchase appellant’s property for the sum of $5,500, payable $3,700 in cash, and notes payable in two and four years with interest. The written proposal also contained a recital that the purchaser “now deposits $250 of the above purchase price with the Lyman Real Estate 'Company, the seller’s agents, to be held by them until sale is completed, or returned if this offer is not accepted, or, if accepted, the seller fails to carry out his part of the conditions of this offer. ’ ’ Appellee’s agent, who secured the proposal from Hess, took the paper to appellant, and the latter signed an agreement at the bottom of the proposal accepting the offer and agreeing to convey the premises to the purchaser and pay the broker’s commission. The sale was not consummated, and appellant refused to pay the broker’s commission of $275, claimed by appellee, and the latter instituted this action against appellant to recover the amount.

When all of the testimony in the case had been introduced, the court, over appellant’s objection, gave a peremptory instruction in favor of appellee, and the court ^refused to submit the issues on instructions requested by appellant.

It is undisputed that Hess, the purchaser, did not deposit with appellee any sum in money as recited in the contract, but that he did deposit an undated check for $250, payable to appellee, on a local bank, and that Hess never at any time had enough funds to his credit to cover the amount of the draft. On’ the contrary, when the check was presented, payment was refused for lack of funds. Appellant testified that, when appellee’s agent presented the contract to him for signature, the agent told him that Hess had deposited with appellee $250 in money, and appellant also testified that he signed the contract on the faith of that representation. The agent testified in the case, and stated that he did not make any representations to appellant concerning the deposit of cash instead of a check. He testified that nothing was said about the method in which the deposit was made. Appellant,also testified that he had a conversation with Hess after the contract was signed, and received information from Hess for the first time that a check and not money had been deposited. He also testified that he offered to make a deed to Hess, but that Hess told him that he did not want to buy the property, and did not have the money to pay for it. We are stating the testimony in its most favorable light to appellant in order to determine whether or not the court was warranted in giving a peremptory instruction. Our conclusion is that the court erred in taking the case from the jury.

This court has declared the law to be that it is the duty of a real estate broker or a seller’s agent to make disclosure of the terms of pending negotiations, so that the seller may act advisedly in determining -whether or npt the proposal is satisfactory, and that, upon failure to make a correct disclosure of material facts concerning the negotiations, the agent of broker is not entitled to a commission, even though he produced a purchaser ready, willing and able to purchase. Bennett v. Thompson, 126 Ark. 61; Davis v. Metcalf, 157 Ark. 232.

In accordance with this salutary principle of law announced in our decisions, there was an issue of fact in the case for the jury to determine. If, as claimed by appellant, he was induced to sign the contract of sale with Hess on the faith of a false statement o,f appellee’s agent to the effect that a cash payment of $250 had been deposited with appellee, when, in truth and in fact, there was no such deposit, but there had been merely the deposit of a valueless check, then appellee did not justly earn a commission on the uncompleted sale, and should, not recover.

Appellee says that it was responsible to appellant for the amount of the check, and would have guaranteed payment thereof, but this fact, if true, would not relieve appellee from the effects of the false statement of its agent, for there is a material difference between the deposit of cash and the deposit of a worthless check, even though appellee was financially responsible, and would be willing to guarantee the payment of the check.

Counsel for appellee relies upon our decision in Moore v. Irwin, 89 Ark. 289, but all that was said in that case was that, when a broker presents to the seller a purchaser ready and willing to purchase, and the seller accepts him as-a purchaser, there is no implied contract on the part of the broker to warrant the financial ability of the purchaser. In the 'opinion in that case the court said:

“Where the broker does not expressly warrant the financial ability of the purchaser procured by him, nor agree to see that the purchase money is paid, and is guilty of no fraud upon his principal, the latter takes the responsibility of accepting the- proposed purchaser. If he does so, and enters upon an executory contract for the sale of the land upon his own terms, the broker is entitled to the commissions agreed upon, whether the contract is ever fully executed or not. In the absence of contract it is not the business of the broker to see that the purchase money is paid, or to enforce the contract of sale. That is the business of his principal, the vendor. ’ ’

On account of the error in giving the peremptory instruction the judgment is reversed, and the cause is remanded for a new trial.


text:
    Road Improvement District No. 4 v. Ball.
    Opinion delivered February 22, 1926.
    1. Judgments—presumption on collateral attack.—Iñ a collateral -attack upon a judgment of a court of superior jurisdiction every presumption must toe indulged in favor of the jurisdiction of the court, unless it affirmatively appears from the record itself that the facts essential to- the jurisdiction of the court did not exist.
    2. Judgments—collateral attack.—Objection to the jurisdiction of a court of superior jurisdiction which does not appear on the face of the record is not available in a collateral attack, tout only on appeal.
    3. Venue—transitory action.—In the case of a transitory cause of action, a suit may toe maintained in any court of general jurisdiction which could acquire jurisdiction of the persons of the litigants, either by valid service of process or by voluntary appearance of the parties.
    4. Venue—suit against domestic-corporation.—-While a domestic corporation is properly -suable in the county of its residence (Crawford & Moses’ Dig., § 1171), yet in a transitory action a voluntary appearance of the corporation in an action pending in a county other than that of its domicile constitutes a waiver and confers jurisdiction of the court over its person. .
    5. Venue—transitory action.—A suit against a road improvement district for the recovery of money is a transitory action, though it can be enforced- only by taxes levied on the land.

      6. Highways—improvement district—collateral attack on assessment.—The statutory method of testing assessments in highway improvement districts by direct attack (Crawford & Moses’ Dig., § 5421 et seq.) is conclusive, and no question can be raised on a collateral attack as to whether a particular assessment is excessive.
    7. Highways—limitation on bond issue—implied repeal.—Act 303, Sp. Sess. 1920, by approving plans previously adopted by a road improvement district and directing the commissioners to carry out such plans, impliedly repealed a limitation in the general statute (Crawford & Moses’ Dig., § 5399 et seq.) limiting the amount of bonds which might be issued, so far as the limitation applied to this particular district.
    Appeal from Saline Chancery Court; W. B. Duffie, Chancellor;
    reversed.

      W. C. Adamson, Brouse & McDaniel) John D. Shackleford and Carmichael & Hendricks, for appellant.

      Mehaffy & Mehaffy, for appellee.
   McCulloch, C. J.

Appellant is a road improvement district in Saline County, organized under general statutes of the State (Crawford & Moses’ Digest, § 5399 et seq.), and appellees are owners of real property in the district. This action was instituted by appellees in the chancery court of Saline County, to restrain the commissioners of the district from making additional levies of taxes upon the assessed benefits. The trial court granted the relief prayed for in part, and an appeal has been prosecuted to this court.

The district was created prior to the year 1920, and plans were formed for the construction of the improvement. The statute under which the district was created (Crawford & Moses’ Digest, § 5442) provides, in substance, that the commissioners shall not enter into a contract imposing a liability in excess of thirty per centum of the total assessed value of real property in the district. The cost of the improvement exceeded that statutory limitation, hut the Legislature, at the extraordinary session in 1920 (act No. 303, session of 1920) enacted a special statute validating all irregularities in the organization, of this district, and containing a section which reads as follows:

“Section 3. The plans for the improvement heretofore made and approved by said board are hereby ratified and approved, subject to the right granted by said act 388 of a revision of said plans; and the said commissioners are 'directed to carry out said plans as they now stand, or as they may be revised by the board, and to file copies of said plans with the StateTIighway Department and with the county clerk of Saline County, and, in order to carry out the work of improvement, the said commissioners are authorized to borrow in a sum not exceeding $50,000 and to issue therefor negotiable bonds of the district, payable at such times and place as the board may determine, bearing interest at a rate not exceeding six per cent, per annum, and to secure the payment of said bonds by a pledge and mortgage of the assessed benefits of the district and all of its revenue.”

There was an assessment of benefits made in accordance with the statute, and those assessments amounted in the aggregate to about $85,000. The commissioners then awarded' a contract to J. P. Kerby to construct the improvement. The precise amount of the cost of the improvement is not shown in this record, but after the completion of the work a decree was rendered in the chancery court of Pulaski 'County in favor of Kerby against the road district for the recovery of about $16,000 (principal and interest) for balance due him on his contract. The district had already issued bonds for $50,000, and spent the money, and it is inferable from the record in this case that the $16,000 decreed to Kerby constituted the cost of the improvement in addition to the $50,000 spent from the sale of bonds. After the rendition of this decree, the commissioners proceeded in accordance with the statute and procured from the county court an order levying additional taxes upon the assessment of benefits. The necessity for levying the additional taxes arose by reason of the liability of the district to Kerby under the Pulaski Chancery Court decree, and the levy was made pursuant to a. section of the statute which reads as follows:

“Section 5434. If the tax first levied shall prove insufficient to complete the improvement, the hoard shall report the amount of deficiency to the county court, and the county court thereupon shall make another levy on the property previously assessed for a sum sufficient to complete the improvement, which shall he collected in the same manner as the first levy; provided, that when any work has been done under the provisions of this act, and the first levy so made by the county court is insufficient to complete the work, it shall then be the duty of the county court to make such levy for its completion from year to year until it is completed; provided, however, that the total levy shall in no case exceed the value of the benefits assessed on said property. Any board of commissioners or persons interested may enforce the performance of such duties by mandamus. ’ ’

The additional levy of taxes, together with the original levy, does not exceed the assessed benefits.

On final hearing of the cause, the chancery court declared the effect of the special statute, sufra, to be a limitation of $50,000', the amount of the authorized bond issue, upon the total liability of the district for the cost of the improvement, exclusive of interest, and rendered a decree restraining the commissioners from enforcing the additional levy to discharge the decree in favor of Kerby.

The question of jurisdiction of the Pulaski Chancery 'Court to render the decree in favor of Kerby against appellant is raised, and counsel on both sides debate that question as the principal issue in the case. Appellees attack the decree on the ground that it is void for want of jurisdiction of the court. There is nothing in this record pertaining* to the proceedings in the Pulaski Chancery Court except the decree itself, but it appears from that decree that there were several consolidated suits involved—one by W. G. Smith against Kerby, one by W. C. Adamson against Kerby, and one by Kerby against the appellant and the commissioners of the district. The decree recites the appearance of all the parties by attorneys, including appellant Boad Improvement District No. 4 of Saline County, and there was a finding by the court in favor of Kerby against appellant for the recovery of $14,353.05, with interest from a certain date to the date of the decree. The court also decreed in favor of 'Smith against Kerby for $2,529.28 and in favor of Adamson for $3165, and the commissioners were directed to issue certificates of indebtedness to those parties for the amount of their several recoveries against Kerby, the same to be deducted from the decree in Kerby’s favor, and also to issue certificates of indebtedness to Kerby for the remainder.

The present attack upon the validity of the decree of the Pulaski Chancery Court is a collateral one, and the law is well settled that in a collateral attack upon a judgment of a court of superior jurisdiction every presumption must be indulged in favor of the jurisdiction of the court, unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of the court did not exist. Boyd v. Roane, 49 Ark. 397; McConnell v. Day, 61 Ark. 464; Clay v. Bilby, 72 Ark. 101; Jones v. Ainell, 123 Ark. 532; Lashbrook v. Tri-County Highway Imp. Dist., 152 Ark. 461. In the application of this principle, it is necessary for us to examine the character of the former litigation in order to determine whether or not a lack of jurisdiction appears upon the face of the decree. It appears from that record that the suit was one for the recovery of money, and that all of the parties appeared in court by their respective counsel. In other words, the decree is regular on its face for the recovery of money, and shows jurisdiction of the court over the subject-matter and of the parties. If there was any objection made to the jurisdiction of the court over the parties, it does not appear from the face of the record. But, even if there had been snch objection, it is not available in a collateral attack, for it was the duty of the objecting party to appeal from the adverse decree. Ederheimer v. Carson Dry Goods Co., 105 Ark. 488; Lashbrook v. Tri-County Highway Imp. Dist., supra; Tri-County Highway Imp. Dist. v. Vincennes Bridge Co. ante p. 22; Howard-Sevier Rd. Imp. Dist. v. Hunt, 166 Ark. 62. Of course, if the court had no jurisdiction over the subject-matter of the litigation, it necessarily appears upon the face of the judgment, and is fatal to the validity of its decree. There is, however, no lack of jurisdiction as to the subject-matter of the action, which is one to recover money. The cause of action was transitory, and the action could be maintained in any court of general jurisdiction which could acquire jurisdiction of the persons of the litigants, either by valid service of process or by voluntary appearance of the parties. The statute under which the district was created declares that a district organized.thereunder “shall become a body politic and corporate by said name, and may sue and be sued, plead and be impleaded.” Appellant district is therefore to be treated the same as any other domestic corporation, and can sue and be sued under the regulations provided in the general statutes. A suit against a domestic corporation must be brought in the county of its residence ('Crawford & Moses’ Digest, § 1171), but in a transitory action a voluntary appearance of the corporation in an action pending in a county other than that of its domicile, constitutes a waiver, and confers jurisdiction of the court over its person. Learned counsel for appellees rely upon our decision in Beal-Doyle Dry Goods Co. v. Odd Fellows Bldg. Co., 109 Ark. 77, but in that case the attack on the correctness of the judgment was not 'collateral, but was a direct one on appeal, and there was no waiver until the case was brought up here by appeal. Appellant, as defendant in the action, sued outside of the county of its domicile, moved to quash the service, and we held on appeal that the court erred in refusing to quash the service, but we held further that the appeal operated as an appearance, and that on remand of the case the court had jurisdiction to proceed with the adjudication of the merits of the controversy.

Now, it is further argued by counsel for appellees that the decree of the Pulaski 'Chancery Court indirectly created a lien on lands in 'Saline County, and that for that reason the venue was in the county where the lands are situated. ¡We cannot agree with this argument, for the suit was not one to declare or enforce a lien on real estate, but was one merely for the recovery of money. The fact that the decree could only be enforced by taxes levied upon the land in the district did not make it a suit to impose or to enforce liens upon land. The statute itself provides how the taxes in road districts shall be levied and collected, and this method must be pursued, regardless of the evidence of the obligation of the district or the manner in which those liabilities are established. Merely rendering a judgment against a district for the recovery of money does not involve, either directly or indirectly, the method of enforcing- the liens to raise funds to pay the judgment. It is true that the Pulaski Chancery Court in its decree directed the commissioners of the district to take necessary steps to collect the assessments. A discussion'of that part of the decree is entirely unnecessary in the disposal of the present case, for it appears from the record that the additional levies were made in accordance with the terms o.f the statute by order of the county court of Saline County, and the direction of the Pulaski 'County Court to the commissioners, has no bearing upon the validity of the additional levy. The authority to enforce the annual installments of taxes is plainly conferred by the statute, and the validity of that statutory provision has been settled by former decisions of this court. Griffin v. Little Red River Levee Dist., 157 Ark. 590; Arkansas-Louisiana Highway Imp. Dist. v. Pickens, 169 Ark. 603.

The conclusion reached is that this collateral attack upon the validity of the decree of the Pulaski 'Chancery Court cannot be sustained. That being true, the decree is a conclusive adjudication of the liability of the district to Kerby, and all parties are bound to that extent and no further.

Appellees attempted to impeach the validity of the assessments of benefits by introducing the testimony of witnesses to prove that the assessments were excessive. The statute (Crawford & Moses’ Digest, § 5421 et seq.) provides a plan and mode for the assessment of benefits and the adjustment thereof, giving landowners notice an'd affording an opportunity for contesting the assessments, and the statutory method is conclusive. The time for testing the assessments has been allowed to pass without prosecuting an appeal in accordance with the provisions of the statute, hence the present ■ attack on the correctness of the assessments is a collateral one, and is unavailable. Chapman & Deivey Lbr. Co. v. Osceola & Little River Road Imp. Dist., 127 Ark. 318; House v. Road Imp. Dist., 158 Ark. 330. The special statute of 1920, supra, approved the plan for the improvement, and directed the commissioners to carry out these plans. This necessarily implied the authority to levy a tax upon benefits sufficient to pay the cost of the improvement and operated as a repeal of the inconsistent limitation in the general statutes, so far as it applied to this particular district. Farelly Lake Levee District v. Hudson, 169 Ark. 33. The chancery court decided that the special statute removed the limitations expressed in the general statute, but that it declared a new limitation upon the cost- of the improvement to the amount of the authorized bond issue. In this, we think, the court erred, for there was a specific direction to the' commissioners, as we have already seen, to construct the improvement according to plans, and the express authority to issue bonds did not operate as a limitation of the authority to construct the improvement. Altheimer v. Plum Bayou Levee Dist., 79 Ark. 229.

The decree of the chancery court was erroneous, and the same is therefore reversed, and the cause remanded with directions to dismiss the complaint of appellees for want of equity.

Wood and Hart, JJ., dissent.