author: Kirby, J.

text:
    Missouri Pacific Railroad Company v. Whelen Springs Gravel Company.
    Opinion delivered April 25, 1932.

      R. E. Wiley, for appellant.

      Rose, Hemingway, Cantrell & Loughborough, Coleman db Riddich, Gantt and J. S. McKnight, for appellees.
   Kirby, J.

The appellees filed petitions with the Railroad Commission to require the Missouri Pacific to allow ,them $3 per car for switching cars by the gravel company’s locomotives in and between the gravel plants and the carrier for the transportation.

The gravel plants are at various distances from, and are connected -with, appellee’s railroad, by private spur tracks. Each of the gravel companies owns switch tracks and locomotives which they use in their plant, and which are also used in switching cars onto the tracks of appellant.

The spur tracks were constructed by the gravel company, the rails being leased from the carrier.

The gravel companies alleged that in their switching they were doing part of the line haul, which the carrier was obligated to do, and claimed that they should either have an allowance for that service performed for the carrier or that the carrier should he required to perform the switching.

The carrier contended that the service done by the gravel companies was a special service, and denied that the Railroad Commission had any jurisdiction to compel the service, or compensation in lieu of it. It claimed that it extended the service in so far as it participated at all under special contract for a private industry spur agreement, and that no part of the service was transportation service which it could be compelled to perform.

The Railroad Commission on its own motion instituted investigation into the question of reasonableness of requiring all carriers by rail either to perform the switching service, or to compensate the gravel companies for performing the switching service, and also to investigate questions of discrimination, and ordered other carriers to be made parties.

The carriers all filed responses, claiming that the Railroad Commission had no .jurisdiction, and that, if the Commission had jurisdiction, the switching for which allowance is claimed was no part of the transportation service, but was interplant operation for which no allowance should be made. The carriers also alleged that the enforcement of the allowances would work an illegal discrimination, and they also contend that the Commission’s order is void because its findings defeat instead of support the allowance.

Evidence was introduced, both by the appellees and appellant, and the Commission, after hearing the evidence, ordered that appellant either perform the service of delivering empty ears to the gravel pits of petitioners, and haul the loaded cars from the pits, or pay to the petitioners $2.50 per car for each loaded car handled, the order to become effective February 10, 1931.

The Missouri Pacific Railroad Company appealed to the Pulaski Circuit Court, where the case was heard, and the circuit court entered the following order:

“The court, being well and sufficiently advised as to all matters of law and fact arising’ herein, is of the opinion that the order of the Arkansas Railroad Commission should be in all things approved and affirmed.

“It is therefore considered, ordered and adjudged by the court that the order of the Arkansas Railroad Commission in this cause be, and the same is, hereby in all things approved and affirmed, and the defendant, Missouri Pacific Railroad Company, be, and it is hereby directed and ordered by the court to comply with the same.”

From this judgment of the circuit court the railroad company has appealed to this court.

It is contended by the appellant that the Railroad Commission was without jurisdiction to order the allowances for two reasons: first, because such allowances are not within any subject-matter over which the statute gives the Commission jurisdiction; second, the service is a special one, pursuant to contract, which contract the Commission has no jurisdiction to compel.,

The first question for our determination is whether, under the evidence in this case, the Railroad Commission had jurisdiction to try the case and make the order.

• Counsel on both sides have filed exhaustive briefs, and cited numerous authorities, which we have carefully considered, but which we do not deem it necessary to review here.

Our statute provides that the Commission shall make rules and regulations in respect to receiving, hauling, transporting and delivering of freight and express. Section 1649 of Crawford & Moses’ Digest.

Section 1650 of Crawford & Moses’ Digest authorizes the Commission to make and establish all needful rules and regulations, general and special, and for furnishing cars.

Act No. 124 of the Acts of 1921 also gives the Railroad Commission authority to regulate carriers.

These statutes were construed and the authorities reviewed in the case of Kansas City Southern Ry. Co. v. Ark. Railroad Commission, 175 Ark. 425, 299 S. W. 761. In that case the court, among other things, said:

“The comprehensive jurisdiction vested in the Railroad Commission by act No. 124, supra, which, as above set forth, extends to and includes all matters pertaining to the regulation and operation of trains and all other jurisdictions possessed by the Arkansas Railroad Commission under the Constitution and the laws of Arkansas in force on March 31, 1919, unquestionably confers jurisdiction on the Railroad Commission to correct all abuses that then existed, or might in the future obtain, by virtue of any act of the Legislature covering the special matters designated by act No. 149, as amended by act 338 of the Acts of 1907, and all other matters pertaining to the regulation of all common carriers, railroads, etc., set forth in act 124 of the Acts of 1921.”

The Railroad Commission would have the power to require the carrier to construct and maintain such switches and spur tracks as are reasonably necessary to properly serve the public, and if a carrier uses the private tracks of shippers for its purpose, the Railroad Commission would have the same right to regulate the switching on these tracks that it would on tracks which belonged to the carrier. The carrier, of course, could not be required to use the tracks of the shipper, nor could the shipper be required to permit the use of its tracks. That, as stated by the appellant, is a matter of contract between the parties. They, however, could not lawfully contract in such a manner as to discriminate against others. They could not so contract as to make the freight rates of the shipper either greater or less than the regular rates.

“The Commerce Act prohibits the payment of rebates, and its command cannot be evaded by calling' them differentials or concessions, nor by taking' the money from the railroad itself or from a company that is proved to be the same as the railroad.. Otherwise nothing would be easier than for lumber companies to charter a railroad, collect freight as a railroad, but pay it out as a lumber company to shippers.” Fourche River Rd. Company v. Bryant Lumber Co., 230 U. S. 316, 33 S. Ct. 887.

It is to prevent rebates, abuses and unjust discriminations that the Railroad Commission was created, and the laws creating the Commission and prescribing* its powers and jurisdiction are to be liberally construed to effect the purposes fur which they were created.

It is true that a common carrier cannot be required to receive freight on or along a private switch. The order of the Railroad Commission which was affirmed by the circuit court does not order the carrier to receive freight on a private switch. What the order does is to require the railroad company to do the switching, which is a necessary part of the transportation, or to pay the shipper for such service.

Appellant cites and quotes from Fairview Coal Co. v. Ark. Central Ry. Co., 159 Ark. 649, 252 S. W. 920, 32 A. L. R. 191, to sustain its contention that it cannot be required to receive freight on a private switch. The court in that case, however, said: “Where a railroad company furnishes sufficient facilities of its own for the receipt and delivery of freight, there is at common law no duty resting* upon it to receive or deliver freight upon a private siding or spur track. ’ ’

The carrier, however, must furnish sufficient facilities of its own, or it may use the facilities furnished by the shippers, but in either event it must either do that part of the switching which is a necessary part of the transportation, or pay the shipper a reasonable compensation for the switching.

In speaking of the power of the Commission, it has been said: “And in dealing* with the interest of the wider public we do not feel that the action of the Commission should be hampered or influenced by the necessity of considering* the effect of the improvement on the local public, when its effect on the wider public of which the local public is a part will be beneficial.” West v. Philadelphia-B. & W. Rd. Co., 155 Md. 104, 141 Atl. 509.

The Commission, before making the order in this case, on its own motion brought in the other railroads of the State so as to consider the entire question.

“The railway company owes a duty to the shipper, to the public, and to itself. The Commission is authorized by statute to supervise the practice and regulations of railroad companies, and make such orders in connection therewith as it determines to be reasonable.” Halliday v. Public Utilities Commission, 118 Ohio St. 269, 160 N. E. 713.

While there is some conflict in the evidence in this case, there is substantial evidence to show that the switching mentioned in the Commission’s order is a part of the line haul, and a service to be performed by the carrier, and while, as contended by appellant, the Railroad Commission would have no authority to compel it to use the private tracks of the shipper, the Commission does have authority to determine whether the public necessity and convenience requires the establishment of spurs and switches, and there is nothing in the law to prevent it from using the switches and spurs of others. It may either do this or provide facilities of .its own.

It is next contended by the appellant that, if the Commission had jurisdiction, the switching for which allowance was made is no part of the transportation service. As we have already said, while there is some conflict in the evidence, there is substantial evidence to support the finding that the switching was a part of the transportation service.

It is also contended by the appellant that the allowance will work an illegal discrimination. There is no evidence in the record, however, tending to support this contention.

It is finally contended that the order is void because the findings of the Commission defeat, instead of support, the allowance. We do not agree with appellant in this contention.

It is true that the Commissioner’s order stated that it was not clear how much of the service was plant faeility, etc. The Commission stated, however, that there was-enough service which should properly be done by the carrier to amount to $2.50 per car, and the evidence of appellant’s witnesses is to the effect that this is cheaper than the carrier itself could perform the services.

The Railroad Commission had jurisdiction; there is sufficient evidence to support its finding, and the judgment of the circuit court is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Ozark School District No. 56 v. Wickes Consolidated School District No. 79.
    Opinion delivered April 25, 1932.

      Dttke Frederick, for appellant.

      Lake, Lake & Carlton, for appellee.
   Humphreys, J.

This is an appeal from a judgment of the circuit court of Polk County setting aside an order of the county board of education entered on July 2d, revoking its previous order of May 15, 1931, dissolving Ozark School District No. 56 and annexing the territory thereof to the Wickes School District.

The order consolidating the two districts was made at a called meeting of the board with only three out of five members present. The record reflects that the two absent members were not notified, and had no knowledge, of said meeting. Section 35 of act 169 of the Acts of 1931 of the General Assembly relative to special or .called meetings of the board of education is as follows:

“The county board of education shall meet on the third Tuesday in March, June, September and December of each year, and at such other times as meetings may be adjourned to, or on call of its chairman, county superintendent of schools, or any two members of the board; Notice of such call meetings to be given in writing to each member of the board.”

The statute is mandatory, and its provisions must be strictly obeyed in order to give validity to a called meeting or acts performed by a board of this character at such meeting. The statute was not followed, and therefore the order consolidating the districts on May 2, 1931, was void. School District No. 42 v. Bennett, 52 Ark. 511, 13 S. W. 132; Burns v. Thompson, 64 Ark. 489, 43 S. W. 499; Dierks Special School District v. Van Dyke, 152 Ark. 27, 237 S. W. 428.

The board had inherent authority at any subsequent valid meeting to expunge from its record void orders theretofore entered by it, even on its own motion. The power or authority to enter an order necessarily implies power or authority to vacate a void order.

The trial court took the view that the board of education was without authority to set aside upon motion an order once made by it. We think to the contrary, and have no doubt whatever that a board of education may set aside one of its void orders and thereby clear its erroneous record.

On account of the qrror indicated, the judgment is reversed, and the cause is remanded with directions to the trial court to affirm the order of the county board of education setting aside its order of May 15, 1931, consolidating said districts.


author: Mehappy, J. Smith, J.,

text:
    Arkansas Power & Light Company v. Kilpatrick.
    Opinion delivered April 25, 1932.

      Albert Walls, G. H. Moses and J. W. House, for appellant.

      T. G. Trimble, W. W. McCrary, Jr., and T. G. Trimble, Jr., for appellee.
   Mehappy, J.

-On July 6, 1931, George Kilpatrick, Jr., seven years of age, was severely injured inside the substation of the Arkansas Power & Light Company in Lonoke, Arkansas. Suit was brought against the Arkam sas Power & Light Company for the minor by his father as next friend, and suit was also brought by George Kilpatrick, Sr., for the loss of services of the child, and for medical and hospital expenses.

There is no dispute about the injury to the child, nor the extent thereof. He was badly injured and suffered the loss of his right arm below the elbow; he was severely burned about his feet, and suffered the loss of part of three toes.

It was alleged that the appellant was engaged in the electric power business, furnishing electricity to the town of Lonoke, and, as such distributor of electricity, it negligently maintained a substation within the corporate limits of the town of Lonoke, said substation being connected with high-power tension wires of more than 1,300 volts. Appellant’s substation is located a short dis-' tance west of the 'Bransford gin, and appellee alleged that appellant negligently inclosed the substation by a light net and barbed-wire fence on property upon and about which children are accustomed to play, its surroundings being attractive to children, and that this fact was well known to the appellant; that on the sixth day of July, 1931, George Kilpatrick, Jr., in passing said property, was attracted to same, and the fence surrounding the substation was inadequate, insufficient, and negligently constructed, and enabled the said George Kilpatrick, Jr., to climb through same and into said inclosure, where the transformers and high-tension wires were located, said property being unguarded; that George Kilpatrick, Jr., was seven years of age, and unaware and unwarned of the danger concealed in the wires; he, childlike, climbed upon said transformers, and came in contact with said uninsulated high-tension wires, and was severely injured.

It is unnecessary to describe the injuries or the extent thereof, because there is no dispute about the extent of the injuries.

The appellant answered admitting that, as a distributor of electricity, it maintained a substation within the corporate limits of Lonoke, and that the substation was connected with a transmission line, and that the substation is a short distance west of Bransford’s gin. It denied all the allegations of negligence, and alleged that its substation was properly and carefully maintained, so built as to render it impracticable for people to climb over and into the inclosure; that the gate was kept securely fastened, and that George Kilpatrick, Jr., climbed over a seven- or eight-foot fence, and through ■barbed-wire over into the inclosure, and then, by means of a board or plank, elevated himself sufficiently high to come in contact with the transmission line of appellant, which was charged, and which caused the injury.

The substation was located within the corporate limits of the town of Lonoke, and near it there were dwelling housés where families and children lived. There was also located near the substation the gin and a rock pile, and east of the station, a light pole. There was also in the vicinity of the station an old water tank, a sawdust pile, and a cottonseed hull pile. Just west of the station was a handle factory.

When the boy was injured, John Hastings heard his scream and ran to the place and rescued him. When Hastings got to the substation, the gate was not locked, and had no hinges on it, but was supported by two wires, one at the top and one at the bottom. He pushed the gate down to get in.

Witnesses testified that they had seen neighborhood boys playing around the tile pile that they played around there all summer. They also played on the hull pile. There was a trail down alongside the substation to the hull pile, and the sawdust pile was just northwest of the hull pile. The fence wire was loose, and there were four loose wires on top of the hog wire, which could be separated two feet by pulling them apart. The hog wire at the bottom was fastened to posts, but was loose.

After the accident signs of danger had been placed on the tank. There is also a willow tree between the gin and substation. During tbe summer children played on the sawdust, cotton bales and hull pile.

On the morning of the accident there were two boys at the substation, Kilpatrick and Grubbs. It was a common thing for children to play in the territory around the substation.

One witness had prepared a map from which he testified, showing the location of the switch track, substation, willow, etc., but the map was not introduced in evidence.

Witnesses for appellant testified that they had never seen any children playing around the substation, but they had seen them around the old mill shed and willow trees. There was a bird’s nest in the pole in the northwest corner of the substation. The wires carrying 1,300 volts were not insulated.

There was a verdict and judgment for $10,000 in favor of George Kilpatrick, Jr., and verdict for $2,000 in favor of George Kilpatrick, Sr. The case is here on appeal.

Appellant contends, first, that the substation was not attractive to children, and that it'was error to try the case on the theory of an attractive nuisance.

In support of this contention, it cites and relies on 20 R. C. L. 83, 84 and 89. It is contended that, to render an instrumentality an attractive nuisance, it must appear, first, that the instrumentality must be of such a character as to render it attractive to children; second, it must be shown, that appellant knew or should have known that a child would make use of the instrumentality; and, third, it must be shown that the defendant failed to provide guards of protection to the instrumentality.

The sections referred to state the rule to be that it must ordinarily appear that the instrumentality was alluring to youth, appealing to childish instincts of curiosity and amusement, and that it was situated in a place open to and frequented by children; that it was easily accessible to children, and that it constituted a peril.

It is, however, stated in the same sections referred to by appellant that children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this'and take precautions accordingly.

So far as we know, no authorities hold that the instrumentality must necessarily, of itself, attract children to the place. If it is such an instrumentality as that small children, because of their curiosity or for their amusement, would be likely to be injured when attracted to the place by the situation or by other things in the immediate locality of the instrumentality, then children injured by the instrumentality are entitled to recover, although they might not be attracted to the place by the dangerous instrumentality alone.

The general rule is well stated in C. J. as follows:

“It has been held that one who maintains on his premises a dangerous instrumentality which is not itself attractive, but is placed in such immediate proximity to an attractive but not dangerous situation or condition as to form with it an attractive and dangerous whole, is liable for injuries to a child thus attracted to the danger. ’ ’ 45 C. J. 766.

The undisputed evidence in this case shows that the dangerous instrumentality, the substation, was within the corporate limits of the town of Lonoke; that in the immediate vicinity of the substation was a rock pile, a hull pile, willow trees and cotton bales; that near the substation were a number of homes, and that the children frequently played around these places, and the appellant was. bound to know this.

Appellant calls attention to a number of other cases, biit, so far as we know, none of the recent cases are in ■conflict with the rule above quoted from Corpus Juris.

Appellant contends that it is thoroughly established that Kilpatrick, the injured boy, and the Grubbs boy climbed over the fence at the northeast corner of the substation.

The evidence does not show how the boy got inside the inclosure and came in contact with the electric wire. The evidence shows that the fence wires were loose, could easily be separated so as to leave a space of two feet between them, and the boy may have gotten through the fence or he may have climbed over it.

Nothing would be more natural than for children, the age of the injured boy to get inside the fence of the station, either out of curiosity for amusement, or to get at the bird’s nest, which the evidence shows was in a post in the corner of the fence. Children the age of the injured boy, going on to other’s property, are not trespassers. Adult persons would be trespassers, but, even where adults are on the property of others by invitation and are injured by the dangerous instrumentality maintained by the owner of the land, they may recover.

It is the general rule that the maintenance of a dangerous instrumentality that is attractive to children, or the maintenance of such instrumentality at a place made attractive to children, is an invitation to children to come upon the premises, and they are not trespassers in so doing; in other words, the children attracted to the place are in the same situation that adult persons are in gping on the premises by invitation.

The Iowa court said: “This brings us to the question, What constitutes an invitation? These authorities hold that one who maintains upon his place, and permits to remain exposed, something dangerous when approached or used, and of such an attractive character that he knows, or, as a reasonable prudent man should know, will invite the attention of children and draw them to it, because of their sportive and playful natures, impliedly invites them to come; that in exposing such an instrumentality, with the knowledge that it will attract children, he occupies the same position when they come as if he had beckoned them and they followed. We are not here discussing the question of contributory negligence on the part of the child. We will assume the child is too young to be chargeable with negligence. We are not dealing with a trespassing child, for no one is a trespasser who comes by invitation of the owner. As the cases of attractive nuisance seem to rest upon the thought that, exposing anything of a character that appeals to children’s nature, and by appealing draws them to it, is, in its very nature, an implied invitation to them to come. It is not material in an inquiry of this kind whether the children had been accustomed to come or not; whether it had remained a long time or a short time.” Wilmes v. Chicago, Great Northern Ry. Co., 175 Iowa 101, 156 N. W. 880, L. R. A. 1917F, 1024.

“By common knowledge, very young children are liable to trespass, and be wholly ignorant of wrong-doing, or substantially so. Is there not a duty owing to such children as to such situations — a duty even within the broad lines of the principle stated — though they be wrongdoers, which may be actionably breached, and especially so in a case of their being where they have a right to be, as in this case? The common instincts of mankind suggest that. Sound policy would seem; to demand it, and the courts in general, and this court in particular as to situations analogous to the one in hand* uphold it.

“Conservation of child-life and safety as to artificial perils is one of such importance that ordinary care may well hold every one responsible for creating or maintaining a condition involving any such, with reasonable ground for apprehending that children of tender years may probably be allured thereinto.” Kelly v. Southern Wisconsin R. Co., 152 Wis. 328, 140 N. W. 60, 44 L. R. A. (N. S.) 492.

It is next contended that George Kilpatrick was injured as a result of his own act in climbing over the fence into the substation. As we have already said, the evidence does not show how he got into the substation; whether he climbed through the wires or over the fence, but no matter how he got there, a child of his age could not know that there was any danger in going where he did.

Danger from electricity is different from danger from a pond or -other things which children know about. Electrie force cannot be seen, and, for that reason one who handles a deadly agency like electricity must exercise care commensurate with the danger.

“When one, through the instrumentality of machinery, can accumulate or produce such deadly force as electricity, he should be compelled to know that the means of its distribution are in such condition that those whose business or pleasure may bring them in contact with it may do so with safety.” Maysville Gas Co. v. Thomas, (Ky.) 75 S. W. 1129; Thomas v. Maysville Gas Co., 108 Ky. 224, 56 S. W. 53, 53 L. R. A. 147; Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846.

“The plaintiff’s right to recover is predicated on the doctrine, so often announced by the courts, that, where an owner permits anything dangerous which is attractive to children, and from which injury may be anticipated, to remain unguarded on his premises, he will be liable if the child attracted to the place is injured thereby. That doctrine has been discussed in numerous decisions of this court, and several of them have applied it so as to allow recovery for damages.” Foster v. Lusk, 129 Ark. 1, 194 S. W. 855.

This court has had the question of attractive nuisance before it many times, and has uniformly held that whether the dangerous instrumentality was attractive to children was a question for the jury. Nashville Lbr. Co. v. Busbee, 100 Ark. 76, 139 S. W. 301; St. L., I. M. & S. R. Co. v. Waggoner, 112 Ark. 593,166 S. W. 948; Central Coal & Coke Co. v. Porter, 170 Ark. 498, 280 S. W. 12; Brinkley Car Works v. Cooper, 75 Ark. 325, 87 S. W. 645.

This court has many times held that the questions of negligence and contributory negligence are for the jury. Every one knows that children seven or eight years old are not only likely to go onto the premises of another, where there is anything attractive to them, but will climb and go to places like this substation, and that they would not know there was any danger.

Appellant calls attention to numerous cases, but the doctrine of attractive nuisance has been before this court so many times, and the rule is so well settled, that we do not deem it necessary to review or discuss the authorities referred to.

It is finally contended that the court erred in giving appellee’s requested instruction No. 1, which reads as follows: “The court instructs the jury that, if you find from the testimony in this case that the defendant maintained a substation for receipt of electricity, which it knew to be dangerous, and said defendant was guilty of negligence in not maintaining a proper fence around said substation, and same was located on premises about which children would congregate and play, which the defendant knew, or by exercise of reasonable care should have known, that children would congregate and play around and about the premises, and would likely be attracted onto said premises and injured by electricity received at said substation, if not properly inclosed; and if you further find that said plaintiff was attracted to said substation • and injured by electricity conveyed through defendant’s wires at said substation, and in doing this he exercised such care and prudence as may be reasonably expected of a boy of his age, intelligence and maturity, then this would be such negligence on the part of the defendant as would render it liable to plaintiff for damages by reason of the injuries sustained.”

The appellant argues, first, that the instruction does not require the negligence of defendant to be a contributing or proximate cause of the injury. The instruction, we think, is not open to this objection.

It is stated by appellant that the instruction submitted the question of appellee’s attraction to the station without évidence to support it. We think the evidence is ample to show that the children were in the habit of playing in the immediate locality of the substation, and the appellant knew this, and, as we have already said, it was a question for the jury, not only whether the appellant was guilty of negligence, but as to whether the substation was such as to attract children.

There are some other objections pointed out to the instruction, but we have carefully considered the instruction and all of appellant’s objections to it, and have reached the conclusion that the court did not err in giving this instruction. St. L., I. M. & S. R. Co. v. Waggoner, 112 Ark. 593, 166 S. W. 948; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, 87 S. W. 645.

Our conclusion is that the evidence was sufficient to sustain the verdict, and that there was no error committed by the court in instructing the jury.

The judgment is therefore affirmed.

Smith, J.,

(dissenting). The various houses, buildings, hull piles, etc., to which the majority refer as being in the neighborhood of the substation, were, with it, situated upon a plot of ground four blocks in area with, out intervening streets. In other words, there would have been four blocks had there been intervening streets to so divide the land.

The transformer where the child was burned was located in ari inclosure about eighteen by twenty feet, with a hig’h fence around it, this inclosure being on this four-block area. No witness testified that any child had ever been seen within this inclosure. The father of the injured boy testified that it had never occurred to him that a child would play within the inclosure where the transformer was located. This was, of course, because of the presence of the fence. Why, then, should any such danger have been anticipated by any other person? Children did play upon these four blocks and on the various objects thereon, as stated by the majority, but no one had ever seen a child within the inclosure containing the transformer.

There was testimony to the effect that the gate was not kept locked, and was fastened only with two twisted wires, one at the top and the other at the bottom of the gate. But the majority opinion recites the fact that the man who first reached the boy found the gate fastened, and that he was required to push it down to obtain access. Just what force was required to accomplish this purpose is not shown. But the condition of the gate is unimportant, as it is certain that entrance to the transformer was not had through the gate.

The fence enclosing the transformer consisted of three strands of a mesh wire, each strand being twenty-six inches wide, which made a mesh fence six and one-half feet high. There is no contention that access was obtained through the mesh, as they were too small to make that possible. Above this wire fence four strands of barbed wire extended outward on cross-arms, so that the entire fence was about ten feet high. It was these barbed wires above the mesh fence which could be extended so that an intervening space of two feet would exist between them.

No witness saw the boys enter the inclosure. The injured boy was not offered as a witness, and the testimony of his companion, offered by defendant, was excluded on account of his youth. The offer was made to show by this excluded testimony that the boys climbed the fence to get a bird’s nest, and later climbed down into the inelosure. This bird’s nest was in a corner post (a sawed-off telephone pole) of the inclosure, but it was not shown that the defendant Was previously aware, or should have been, of the presence of this bird’s nest. However, the complaint is not made that the bird’s nest was an attractive nuisance. It would require - an unusual degree of care to prevent boys from climbing trees and posts in search of birds’ nests.

The only affirmative testimony as to how the boys entered the inclosure — the testimony of the Grubbs boy being excluded — was furnished by defendant. A number of witnesses testified on behalf of defendant to the effect that there were footprints on the posts and braces. The injured boy wore shoes. His companion was barefooted. A witness testified that he observed “one foot-print on the angle brace that came up at the side of the corner post, and this brace had showed the print of a foot where some one had climbed np the brace to get on the inside of the substation. ’ *

It appears, therefore, even with the testimony of the Grubbs boy excluded, that entrance to the inclosure was obtained by climbing over the fence at the post where the bird’s nest was. There would even then have been no danger had not the injured boy, with the aid of the plank, after getting into the inclosure, climbed upon the transformer, where he could reach the wire. It is true this wire was not insulated, but why should it have been, if it was in a place where there was no reason to anticipate that it could be reached, even by a child?

The law of attractive nuisances is exhaustively annotated in a note to the case of United Zinc & Chemical Co. v. Van Britt, 36 A. L. R. p. 28. The annotations extend from page 34 to page 294, and this exhaustive review is summarized as follows: “To recapitulate: To make out a case against the person responsible for the danger, there must appear: First. That the injured child was too young to understand and avoid the danger. Second. That there was reason to anticipate the presence of such children, either because of some attraction on the premises, or because the danger was in some place where children had a right to be. Third. That there was a strong likelihood of accident. Fourth. That the danger was one other than those ordinarily encountered. Fifth. That the precautions not taken were such as a reasonably prudent person would have taken under the circumstances.”

Under these tests, it occurs to me that a case of liability was not made. It is, no doubt, true that the injured child was too-young to understand and appreciate the danger, but there was no reason to anticipate that he would climb over the fence, and it occurs to me that the precautions taken to prevent this were such as a reasonably prudent man would have considered sufficient.

In 45 C. J., page 682, at § 185 of the chapter on Negligence, it is said: “A property owner is not require cl to make Ms premises ‘child proof’ by providing all possible safeguards against the entry of children, but he fulfills, his full duty when he provides such safeguards as would reasonably prevent injury to a child of ordinary and normal instincts, habits and training*; and if he has provided such safeguards, he is not liable for injury to a child who had overcome the obstacles and succeeded in reaching a place of danger.” The numerous cases cited in the note to the text just quoted fully sustain the text.

I do not review the cases cited by the majority to distinguish them from the instant case, but the distinction exists. For instance, the majority quote from the case of Wilmes v. Railroad, 175 Iowa 101, 156 N. W. 880, L. R. A. 1917F, 1024, in which case the 'Supreme Court of Iowa said: “We are not. dealing with a trespassing child, for no one is a trespasser who comes by invitation of the owner.” How can it be said that there" was any invitation here, even to a child, where there was a ten-foot wire fence to keep all persons off the premises

The same court said in the case of Anderson v. Fort Dodge, D. M. & S. R. Co., 150 Iowa 465, 130 N. W. 391, that “To say that a property owner must guard against such injury to a trespassing* boy simply because it is possible for him in a venturesome spirit to climb' into the zone of danger would be intolerable. ’ ’

It occurs to me that the majority opinion makes one possessing or operating an instrumentality, which might attract and injure a child, an insurer that the child shall not be injured by requiring such precautions to be taken that an injury is not possible.

This is very difficult, if not impossible, in the operation of any business in the conduct of which a child might be injured, and imposes a much higher degree of care than the law exacts. '

It is my opinion' that such precautions were here taken as the law requires, and that liability was not established, and a verdict should have been directed in defendant’s favor, and I therefore dissent.


author: Mehafey, J.

text:
    Taylor v. Corning Bank & Trust Company.
    Opinion delivered April 25, 1932.

      Sam Rorex and Nat R. Hughes, for appellant.

      E. B. Bownie, Shields Goodivin and Oliver S Oliver, for appellee.
   Mehafey, J.

This is the second appeal in this case. The decision on first appeal is in 183 Ark. 557, 38 S. W. (2d) 557, where the facts are stated.

The only question in this case now is whether interest should he paid on a prior or preferred claim against an insolvent hanking institution.

Appellee cites and relies on § 7360 of Crawford & Moses’ Digest. That section provides for allowing interest on judgments from the day of signing the judgment. It, however, has no application here.

The claim is against the Bank Commissioner in charge of the American Exchange Trust Company, a hanking institution hopelessly insolvent. "While this claim is a prior or preferred claim, every other depositor has the same right as a depositor holding a preferred claim, except the right to he paid first, hut, unless the hanking institution or Commissioner has sufficient funds to pay all the depositors, no interest can he paid on any claim.

Appellee also cites and relies on Arkansas Southern Ry. Co. v. German Nat. Bank, 85 Ark. 136, 107 S. W. 668, but tbe court in that case was not dealing with an insolvent banking institution, and, under our statute judgments draw interest after the signing of the judgment, but the above case does not hold that interest may be allowed in a case like this. .

Appellee next calls attention to 33 C. J. 213, § 79, and 33 C. J. 215, § 82. These sections simply state the law to be that judgments bear interest, and, as a general rule, this is true.

Appellee next refers to Bank of Roxie v. Lampton, 104 Miss. 427, 61 So. 452. That case was tried on an agreed statement of facts, and the court said: “It is manifest from the agreed statement of facts that the appellant was wholly without fault in the matter, and that the Pike County Bank & Trust Company was simply the victim of Gaston’s fraudulent conduct.” The court in that case allowed interest. Caston was acting president of the Bank of R-oxie, and acting cashier of the Pike County Bank & Trust Company, and committed the frauds mentioned in the case, but the facts in that case are different from the facts in. the case at bar.

The general rule is that, unless there are sufficient funds to pay all the depositors, no depositor is entitled to interest on his claim. Clark Sparks & Sons Mule & Horse Co. v. American Nat. Bank, 230 Fed. Rep. 738; Shaw v. McCord, Tex. Civ. App. 18 S. W. (2d) 200; State ex rel. Fant, v. Browne, 156 S. C. 181, 153 S. E. 133, 69 A. L. R. 443.

In the case of People v. American Loan & Trust Co., 172 N. Y. 371, 65 N. E. 200, Van, J., in delivering the opinion of the court, said: “If the assets are sufficient to pay all, including interest, it must be paid, for, as against the corporation itself, interest should be allowed ■before the return of any surplus to the stockholders.” It may be admitted that these remarks were unnecessary to the disposition of the case then under consideration, but tbe rule thus asserted appears to us to be so eminently just and so well supported by other authority that we now have no hesitancy in adopting it as the rule that should be adhered to in disposing of questions of this character. It is not only in accord with the views expressed in the case of Sickles v. Herold, 149 N. Y. 332, 43 N. E. 852, but those expressed in Nat. Bank of Commonwealth v. Mechanics’ Nat. Bank, 94 U. S. 437; Richmond v. Irons, 121 U. S. 64, 7 S. Ct. 788; Mahoney v. Bernhard, 63 N. Y. Supp. 642; Wheeler v. Miller, 90 N. Y. 353.” See Eastman v. Farmer’s State Bank of Olivia, 175 Minn. 336, 221 N. W. 236; Leach v. Sanborn State Bank of Sanborn, 210 Iowa 613, 231 N. W. 497, 69 A. L. R. 1206.

A depositor in a bank which has become insolvent is not entitled to interest on his claim unless the assets are sufficient to pay all the depositors.

The decree of the chancery court is reversed, and the cause dismissed.


author: McHaney, J.

text:
    Arkansas Power & Light Company v. Connelly.
    Opinion delivered April 25, 1932.

      Bose, Hemingway, Cantrell & Loughborough and Elmer Schoggen, for appellant.

      Caviness & George, Neil Bohlinger, Sam T. Poe, Tom Poe and Donald Poe, for appellee.
   McHaney, J.

E. C. Connelly, for himself and as father and next friend of his infant son, Harold Connelly, brought this action against appellant to recover damages for personal injuries sustained by said infant by being struck by a street car of appellant on West Eleventh Street in the city of Little Bock. A trial resulted in a verdict and judgment for himself in the sum of $1,500 and as next friend for the infant in the sum of $3,500.

Three general assignments of error are relied upon for a reversal of these judgments.: 1, that the court erred in the admission of testimony; 2, in the instructions; and, 3, in refusing to direct a verdict for it at its request.

We discuss these assignments in the reverse order. At the conclusion of the testimony for appellees, and again at the conclusion of all the testimony, appellant requested a directed verdict in its favor on the ground that the evidence was insufficient to support a verdict against it, either for the infant or the father. The court refused these requests, and they are now pressed for our consideration. This assignment must be overruled if there is any substantial evidence to support the verdict, viewing it in the light most favorable to appellees. A brief statement of the evidence viewed in this light follows : 'On March 30, 1931, Mr. Connelly, a widower, with his twin children three years and nine months of age, a nurse and housekeeper, and a young lady, lived at the corner of West Eleventh and Washington streets in Little Bock, on the south side of West Eleventh. One of appellant’s double lines of street car tracks is on West Eleventh and occupies a large portion of said street which is not paved. On the north side of this street, between Peyton and Washington, there is a large ditch which has been covered with plank or bridges to afford ingress and egress to the property on the north side of the street, except for about 100 feet east of Washington, where the ditch is not covered. On the above date, Mr. Connelly left the home to go to town, and at that time the children were playing in the front yard with some neighbor children, all being in the immediate custody of the nurse of the latter children. Shortly thereafter said nurse took them all across the street (and, of course, across the car tracks) in a northeasterly direction to a sand pile in the front of a neighbor’s yard, where they were playing. The Connelly nurse and housekeeper discovered their absence, saw them across the street, and called them home. They started home in obedience to the call, but one of appellant’s street cars, traveling west, struck Harold, knocked him down, ran over his right foot and cut'or mashed off three toes, part of a fourth toe and otherwise bruised and injured him. The car traveled a car length or more before stopping after striking the child. At that time of year the children at the sand pile could have been seen by the motorman on the street car for a considerable distance east, and the child in the street could have been seen for a block or more east of the place of injury. The child, in going home, went across the ditch on the plank covering, and was going in a southwesterly direction and traveled some distance in the street before reaching a danger point on or near the track and could have been seen by the motorman, if a proper lookout had been kept, in ample time to have avoided injury to him. An eyewitness to the accident says the motorman, as he came down the street, was looking to the south, and apparently talking to a passenger who was standing on the car. Failure of the motorman to keep a proper lookout was the ground of negligence alleged and relied on, and that he saw, or by the exercise of ordinary care could have seen, the child in time to have averted the injury. We think the evidence sufficient to take the case to the jury, both as to negligence and the proximate cause of the injury. But-appellant says the testimony of the eyewitness who says the motorman was looking to the south is demonstrably false, because she could not have seen what she says she saw. We think appellant is mistaken in this argument. She stopped her car at the corner of Washington and Eleventh and could have seen the incidents testified to. At any rate, her credibility was for the jury. There was therefore substantial evidence before the jury, and appellant must fail on this assignment. It is insisted, however, that Mr. Connelly cannot recover in his own right because of the contributory negligence of Mrs. Kirker, the nurse and housekeeper, who was his agent in the care and custodjr of the children, because she called them to come home when a street car-was approaching in plain view, and because she left them unattended in the front yard. This question was submitted to the jury under proper instructions, and it was a question for the jury under all the circumstances. We cannot say as a matter of law that she was negligent, as it is not certain that she saw the car.

Appellant also assigns error in the giving of instructions 1, 2 and 3 for appellee, in modifying and giving as modified appellant’s No. 16, and in giving the second paragraph of appellee’s No. 29.

Instruction No. 1 for appellees is as follows: “Gentlemen of the jury, this is a suit brought by Harold Connelly, an infant, by his father and next friend, E. C. Connelly, and by E. C. Connelly in his individual capacity, against the Arkansas Power & Light Company. The suit is for damages which the plaintiffs allege they sustained by reason of the negligent injury of the infant plaintiff, Harold Connelly, by a street car in Little Rock, on March 30, 1931.” It is said that this instruction tells the jury that this was a “negligent injury,” and had the effect of withdrawing from the jury the question of appellant’s negligence, making it peremptory to find for appellees in some amount. We do not think the instruction is open to this objection, but is a simple statement of the purpose of the lawsuit. It does not say that plaintiffs sustained a negligent injury, but that they “allege” they sustained damages by reason of the negligent injury to Harold. In other words, it is stated that plaintiffs seek to recover damages and allege that Harold received a negligent injury. This is not tantamount to saying that Harold did receive a negligent injury, but only that they allege such to be the fact.

We have examined carefully the arguments made against instructions 2 and 3 and do not find them open to the objections made. We do not set them out, as no useful purpose could be served thereby.

Instruction No. 16, as requested by appellant, is as follows: “You are instructed that street cars, from the necessity of the case, must have and do have the right-of-way on tracks where they alone can travel, and this right-of-way is superior to that of ordinary vehicles and travelers. This paramount or better right to the use of their tracks does not give them the right to exclude travelers who may move along or cross the tracks at any time and place where such traveling does not interfere with the progress of the street cars. But where there is a conflict between a street car and a traveler, the traveler must yield the right-of-way. This requirement of the law is to subserve the public convenience and accommodation, and it is your duty to bear these reciprocal rights in ■mind in determining the care required of the parties.” The court gave said instruction, and, in connection therewith, added the following, at the request of appellees. “The rights of the plaintiff, Harold Connelly, and defendant street car company to use that part of the street occupied by the street railroad tracks are equal and reciprocal. The plaintiff, in walking on the path along or on the part of the street occupied by the street railroad track, had as much right, if in the exercise of ordinary care, to go along such part of the street, when not occupied by a street car, as he had to go along any other part of the street, and plaintiff was not a trespasser in doing so. In the exercise of the reciprocal rights to nse that portion of the street occupied by the street railroad tracks, the plaintiff and defendant company are also under reciprocal duties. The rights of each in using that portion of the street occupied by the street railroad tracks must be exercised with due regard to the' rights of the other, and in such a careful and reasonable manner as not unreasonably to abridge or interfere with those rights, and so as to avoid injury, the one to avoid inflicting injury, the other to avoid being injured.”

It is argued that the modification given at the request of appellees is in conflict with that part of the instruction requested by appellant. We do not think so. When carefully analyzed, the instruction as a whole, including the modification, states the rule correctly as to the respective rights of the street car company and other travelers on the street over which the car tracks pass. The law is clearly stated by this court in Hot Springs Street Railway Company v. Johnson, 64 Ark. 420, 42 S. W. 833; Little Rock Railway and Electric Co. v. Sledge, 108 Ark. 95, 158 S. W. 1096 Ann. Cas. 1915B, 682; and Pankey v. Little Rock Ry. & Elec. Co., 117 Ark. 337, 174 S. W. 1170. We do not quote from these decisions, but the latter part of the instruction complained of is taken substantially from the latter case.

The latter part of instruction No. 29 given on behalf of appellees, authorizing a recovery by Mr. Connelly of the ‘1 amount he has paid or will have to pay in the future for doctor’s bills, medicine bills, hospital bills, and nurse’s bills by reason of the injury to his infant son, Harold Connelly, and also the loss of services which he may sustain in the future by reason of the injury to his infant son, Harold Connelly, if any, to be shown by the evidence,” is objected to on the ground that it includes loss of services by his infant son, whereas there is no evidence that the infant would be able to earn less money by reason of the injury than he would have otherwise. The proof shows that Mr. Connelly had incurred expenses of approximately $750 and that another operation will he necessary to remove a portion of one of the toes, which will cause additional expense in the future of an unknown amount. It will be seen therefore that very little recovery, if any, was allowed by the jury for loss of ■ services. But, conceding that some portion of the verdict for $1,500 in favor of Mr. Connelly was for loss of earning capacity, we think the boy’s condition, lack of development along with his brother, and the nature and extent of his injuries, all of which was before the jury, were sufficient to justify the jury in allowing some recovery on this account.

It is finally urged that the court erred in admitting certain incompetent prejudicial testimony. We have examined the errors assigned in this respect and find them without merit. Conceding them to be erroneous, they were not prejudicial as the facts testified to were established by other witnesses. We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Missouri Pacific Railroad Company v. Riley.
    Opinion delivered April 25, 1932.

      R. E. Wiley and Richard M. Ryan, for appellant.

      Murphy $ Wood, for appellees.
   Butler, J.

On the 28th day. of March, 1930, two model T' Ford cars, loaded with students of the Hot Springs Junior High School, left the school grounds at the noon hour to he driven about the city during the noon intermission. There was no understanding between the two groups of students, each acting independently, but the common purpose was to return in time to be present at school at the termination of the noon recess. The first car to leave the school grounds was a Ford sedan driven by Paul Pittman, 15% years old. In this car was another boy, 15 years of age, and three girls, two of them 13 and one 14 years old. In the second car, which left the school grounds within a short interval and continued behind the first car at a little distance, was Ewell Johnson, the driver, who was seventeen years old, and two other boys, one 14 and the other 15 years of age,. The two cars were driven about the town for a short time and finally entered upon Washington Avenue, which runs from east to west. They turned west on this street, thinking it would lead them to a street by which they could return to school, and, after going a short distance, ran into an excavation or cut in which the railroad of appellant company ran, with the result that one of the boys was killed and the other students injured to a greater or less degree.

Eight separate suits were brought against the appellant company to recover damages because of the injuries sustained, which suits were consolidated for trial in the court below, and as consolidated are here on appeal from verdicts and judgments in favor of the appellees.

In the complaints the allegation of negligence against appellant was that it made an excavation across Washington Avenue about thirty feet deep, and as many wide and left the same unprotected and unguarded. It was further alleged that, while driving along Washington Avenue, and in the exercise of ordinary care, by reason of the negligence of the appellant in leaving the cut unprotected, the automobiles fell into the cut, demolishing them and causing the injuries to the occupants thereof.

The appellant answered, denying the allegation of negligence, and set up as an affirmative defense (1) that the accident was occasioned by the contributory negligence of the drivers and the occupants of the cars, and (2) that whatever injuries were sustained were due to the negligence of the city of Hot Springs in not placing a barricade or guard to warn persons using the street of the existing danger.

The evidence introduced tended to establish the following facts; Prior to the year 1900 Washington Avenue and "Hendrick Street had been laid off and established, and in that year the predecessor of the appellant company obtained the right from the city to lay its track or railway through the city and across the intersection of Washington Avenue and Hendrick Street. Washington Avenue running east and west and Hendrick Street crossing it approximately at a right angle. The line of railway at this point ran about north and south, and at the intersection of the two streets a deep cut was made, taking a part of Hendrick Street and crossing Washington Avenue. After the excavation was made, Washington Avenue seems not to have been worked westward, but was maintained as a street eastward, being worked for a number of years by laborers with pick and shovel to within a short distance of the cut, estimated at from 35 to 65 feet. After the city procured road machinery the street was worked with tractors and graders. The last time it seems to have been worked was about two or three months before March 28, 1930. Within a short distance of the cut, on either side of Washington Avenue, houses had been built which had been standing for many years, and on the date of the accident in question the roadway was smooth and adapted to vehicular traffic, but had small hills and valleys between, there being two small hills with an intervening valley just before reaching the cut. The crest of the last hill was about 65 feet from the cut.

Forty-two assignments of error were presented in the motion for a new trial, and are argued by appellant in its brief. It will be impracticable to take up and discuss each of these assignments in detail or to review all of the testimony. To do so would unduly extend this opinion, and such evidence as is necessary for an understanding of the case will be briefly set out.

Exception was saved to the qualifications of one of the jurors on the panel because it was shown upon his examination that he was a member of the 'board of aider-men of the city of Hot Springs. The exception to the competency of the juror was based on the theory that the negligence of the city was the proximate cause of the injuries, and, as the city was interested, the fact that the juror was an alderman disqualified him. It is not necessary to say whether or not this juror was disqualified, for there is no showing of prejudicial error, since it is not shown that the appellant had exhausted all of its peremptory challenges. Polk v. State, 45 Ark. 165; St. L., I. M. & S. R. Co. v. Aiken, 100 Ark. 437, 140 S. W. 698; Caughron v. State, 99 Ark. 462, 139 S. W. 315.

Certain exceptions were saved to the ruling of the court on the admission of the testimony of the witness Annen and of witnesses who were permitted to testify that the two boys who were driving the oars were careful and competent drivers. Annen was asked the question if while he was city engineer he did anything to protect travelers on the avenue from the dangers of the cut, and answered that he did nothing. The court held this testimony immaterial, and'refused to admit it. The action of the court was proper because Annen had no connection with the city at the time of the accident or for a considerable period before, and it is also undisputed that neither the city nor the appellant company placed any barricade or danger signal to warn the public of the existence of the excavation before March 28, 1930.

On the question of contributory negligence of the occupants of the cars, the allegation was made that the drivers were incompetent because of immature age and lack of experience. This raised the question of competency, and it was not error on the part of the court to permit witnesses who were acquainted with the skill and experience of the drivers of the cars to testify that they were careful and competent drivers. This was not an expression of a mere opinion, but of the knowledge of the witnesses acquired from full opportunity to observe. Bush v. Brewer, 136 Ark. 246, 206 S. W. 322; Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595.

Exceptions were saved to the instructions given by the court at the request of the appellees, and also to the court’s refusal to give a number of instructions asked by the appellant. The objections made to the instructions given for the appellees and those refused on behalf of the appellant appear to be based mainly on the theory that the appellant was not culpable because it was the duty of the city authorities to safeguard the streets for the traveling public, and that such omission absolved the appellant from blame. We are of the opinion that there was no error in this regard. If there was negligence on the part of the city, it was not an intervening efficient cause, but a concurrent one. We think that the instructions given at the request of the appellant fully and fairly presented to the jury the issues properly to be submitted to them.

A statement of the applicable law is made in the case of St. L. & C. R. Co. v. Aven, 61 Ark. 141, 32 S. W. 500, where, in speaking of the duty of railroads to travelers on highways which are crossed by their lines, the court said: “They are not insurers of the safety of travelers, and are not bound to provide against everything that may happen on the highway, ‘but only for such things as ordinarily exist, or such as may be reasonably expected to occur. ’ Where no danger may be anticipated, on account of the peculiar location of the highway, no vigilance is required for protection against liability for injuries; but where the road, bridge, or other public highway, by reason of its proximity to or construction over excavations, declivities, streams of water, or other places of peril, is manifestly so unsafe as to imperil the life or body of the traveler, it is the duty of the corporations or persons whose duty it is to keep it in repair to do whatever is practicable and reasonable to avert the threatened danger. If rails, guards or barriers be reasonably necessary for that purpose, and practicable, it is their duty to construct and maintain them in the places needed. ’ ’

The evidence in this case is undisputed that the appellant and its predecessor operated the railroad for many years through a deep cut across Washington Avenue at its intersection with Hendrick Street, during all of which time it failed to erect any barrier at the edge of the cut across the avenue or to place any danger signal to warn approaching travelers of the presence of the out. There is also evidence tending to show that this street was used by horse-drawn vehicles before the age of the automobile, and for some time before the injuries to the children on March 28, 1930, it was adapted to travel by automotive vehicles. This raised the question as to whether or not the appellant should have anticipated danger to travelers, and whether its failure to erect danger signals or other safeguards was negligence. This issue, we think, was properly presented to the jury in instructions given on motion of the appellees.

The appellant argues that, because its line of railroad and the excavation were lawfully made on due authority from the city of Hot Springs, therefore there was no obligation on its part to warn of the existence of the excavation, but that this was the duty of the city. This contention is unsound. In Strange v. Bodcaw Lumber Co., 79 Ark. 490, 96 S. W. 152, 116 Am. St. Rep. 92, a drain over a highway crossing was dammed by the permission of the county judge, so that a pond was formed on each side of the highway into which drain a horse fell and was drowned. The case was defended on the ground, among others, that the pond was made under rightful authority, and that to protect travelers on the highway the defendant would be obliged to enter on the same to erect protecting barriers, which it had no authority to do. In dismissing this contention, the court said:

“The fact that the pond was put there by permission of the county judge does not alter the case, for the permission of the county judge cannot authorize acts dangerous to the public, or relieve the defendant from the consequences of its own negligence. Nor is it any defense for defendant to say that it had no authority to enter on the public highway to erect guard-rails or barriers. If the danger to travel on the highway from this pond was of such a nature as to make it necessary to erect barriers to protect the public from danger, then the defendant would either have to erect the barriers or drain the pond. •But it is not shown that it applied for permission to erect barriers, nor is there any ground to believe that a request of that kind would have been denied had it been made to the proper authorities, so we need not speculate upon what would have been the position of defendant if, before the accident happened, it had applied for permission to erect barriers between the pond and the highway, and this permission had been refused.”

This position taken by the appellant that it was the duty of the city authorities to safeguard the highway' and its failure to do so exonerates the appellant is not tenable. Assuming that it was the duty of the city to warn those traveling west along Washington Avenue of the danger ahead, its failure to do so did not relieve the appellant from responsibility, for it was its active agency which brought into being the dangerous situation, and it was bound to take cognizance of the natural consequences to those traveling along the avenue who might be ignorant of the situation and have no warning as they approached. So. Exp. Co. v. Texarkana Water Co., 54 Ark. 131, 15 S. W. 361; City Elec. Ry. Co. v. Conery, 61 Ark. 381, 33 S. W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262; St. L. S. W. Ry. Co. v. Kendall, 114 Ark. 224, 169 S. W. 822; Jenkins v. Midland Valley Ry. Co., 134 Ark. 1, 203 S. W. 1. In these cases the general rule is stated that, where the negligent act of two persons concur to produce an injury, the author of either negligent act is liable to the injured party for the damages sustained. See also Jonesboro, L. C. & E. R. Co. v. Wright, 170 Ark. 815, 281 S. W. 374.

On the question of contributory negligence of the drivers and occupants of the cars, the testimony is in conflict. There was testimony on the part of the appellant tending' to show that the cars were being driven from 25 to 30 miles an hour without heed as to the way ahead, and that driving beyond the end of the avenue and into the cut was the result of excessive speed and heedless conduct. On the other hand, there was testimony of the occupants of the cars themselves, corroborated by the testimony of other witnesses, to the effect that they were driving not faster than fifteen or twenty miles an hour, looking ahead, and that they were unacquainted with Washington Avenue and ignorant of the excavation across it; that their view was obscured by the crest of.the hill -until they reached its summit and then first saw the cut; that they did all they could to check the speed of the cars and avert the disaster; that the brakes were applied, hut the momentum already acquired and the nature of the ground was such that the cars “slided” down into the cut. This presented a question of fact as to whether or not the drivers and occupants of the cars were in the exercise of ordinary care, which question the jury considered under proper instructions.

The amount of the damages awarded to the several parties injured and to their parents is not questioned, and as we find no error, and the testimony is sufficient to support the verdicts, the judgments must he affirmed. It is so ordered.


author: Hart, C. J.

text:
    Bingham v. McGehee.
    Opinion delivered May 2, 1932.

      Starbird <& Starbird, for appellant.

      J ohm, Mayes and G. L. Grant, for appellee.
   Hart, C. J.

Petition for mandamus against a county superintendent of schools to require him to countersign a school warrant under the provisions of an act of the Legislature of 1931. The defense to the suit was that the warrant was illegally issued. The writ was granted, and the county superintendent has appealed. As defined by our statute and construed by this court, mandamus will issue whenever the refusal or failure of an officer to act in a matter, in which it is his plain duty to act, may deprive one of his legal rights. Crawford & Moses’ Digest, § 7021. Maddox v. Neal, 45 Ark. 121; Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360; Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. (2d) 427. As a general rule, the writ will only be issued where the petitioner has a legal right, is entitled to a specific remedy to enforce it, and the officer whose duty it is to afford that remedy withholds it. Board of Improvement v. McManus, 54 Ark. 446, 15 S. W. 897.

In Shackleford v. Thomas, 182 Ark. 797, 32 S. W. (2d) 810, the court again said that mandamus only lies to compel an officer to do that which it is his duty to do without it, and cannot be used to compel the performance of that which is not lawful. The Legislature of 1931 passed a very comprehensive act for the organization and administration of the public common schools. Acts of 1931, page 476. Section 141 provides that the board of directors of each school district are authorized to draw warrants on the county treasury for all funds to be disbursed by them, and that such warrants be countersigned by the county superintendent. The warrant in question in this case was in regular form and signed by the president and secretary of the school board. It was for $100 for legal services to appellee, and was presented by him to the county superintendent to be countersigned. The latter refused to countersign the warrant, and it is the claim of appellee that there was an absolute duty on him to countersign the warrant, and in its performance the county superintendent had no discretion. We do not agree with this contention under the facts shown by the record.

On the first day of October, 1931, a resolution was adopted by the board of directors to hire a lawyer to prevent the school district from being consolidated with another school district in Crawford County. There were six directors, and all of them but one attended the meeting. The remaining director admits that he was given notice to attend it. The resolution as adopted does not state what lawyer was to be employed, nor what his fee should be. On the 10th of October, 1931, the election for the consolidation was held. On the 16th day of October, 1931, the president and secretary of the board signed a warrant for $100 in favor of appellee and delivered it to him. There was no other meeting of the board after October 1st, and no further direction was given about the issuance of the warrant except that contained in the resolution referred to above. According to the testimony of appellee, he performed some services in the way of investigating the law before the election was held and before he was employed. He admits that he was employed on the 16th day of October, 1931, when the warrant was delivered to him. He had not been paid for his services, and does not remember which one of the directors employed him. He recollects that several members of the board came to his office about the matter at different times, but does not remember their names. There is nothing in the record tending to show that all of them went to his office and ratified the power given to employ a lawyer to represent the district at the special meeting held on October 1, 1931.

As we have already seen, mandamus cannot be used to establish a right, but may be used to enforce a right after it is once established. The resolution which was adopted by the 'board on October 1, 1931, did not authorize the president and secretary to employ a lawyer and to pay him a stipulated sum. Hence the president and secretary and such other members as co-operated with them individually did not have authority to hire appellee and issue a warrant to him for $100. That could only be done at either a regular or called meeting of the board. The want of authority in the premises cannot be supplied by any attempted ratification by only a part of the directors.

If the issuance of the warrant was illegal because not done in a manner prescribed by law, the writ of mandamus could not be had to compel the county superintendent to countersign the contract. His action under the facts proved was not arbitrary. It follows that the court erred in granting the writ of mandamus, and for that error the judgment must be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion. It is so ordered.


author: Smith, J.

text:
    Day v. State.
    Opinion delivered May 2, 1932.

      J. D. Cook, Jr., P. P. Bacon and J. D. Cook, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

This appeal is from a judgment sentencing appellant to life imprisonment upon a conviction for the crime of murder in the first degree, alleged to have been committed by killing Walter Harris, who at the time he was ¡killed was the sheriff of Miller County.

At the time of the killing, appellant, who was nineteen years of age, was engaged in the manufacture of intoxicating liquor, in violation of the law. He had been previously convicted of a violation of the National Prohibition Law in the United States District Court, and was under probation by order of said court to Sheriff Harris.

Having information that appellant had resumed the making of liquor, the sheriff, with three deputies, went to appellant’s still to arrest him on the afternoon of July 28, 1931. When the officers came to within a hundred yards of the still, they could hear the persons there employed about the still, and the officers separated. The sheriff and one deputy came up to the still on one side, while the other two officers approached the still from the opposite side. The still was in a thicket, through which a branch or small creek ran. A negro man, who apparently was acting as- a lookout, came out of the thicket, and was ordered by the sheriff to halt. This command was repeated, when the negro began to run, and the sheriff shot him, but no other shot was fired by the sheriff, according to the testimony on behalf of the State.

The officers entered the thicket, and as the the sheriff got to the edge of the thicket near the still, appellant opened fire upon him, firing four times, and one of these shots killed the sheriff. The officers could not see the man who was firing, as he was crouched and concealed in the foliage of the thicket.

Appellant admitted firing the shot which killed the sheriff, but he testified that he did not know that the parties who had come upon him and his associates were officers. He testified that he heard shooting, and saw the negro fall, and, when he looked to see where the shot came from, he saw a stooping man pointing a gun at him through the bushes. The man fired, and the shot from the gun knocked his hat off, whereupon he drew his pistol and commenced firing, and continued to do so until the man fell. He then ran away without knowing that he had shot an officer.

At appellant’s request, the court gave an instruction numbered 6%, which reads as follows: “You are instructed that, if you believe from the evidence that the defendant was placed in the position, at the time of the killing, in which his life was imperiled by the deceased, and he slew him without having any notice of his official character, and the killing was apparently necessary to save his own life, or to prevent his receiving a great bodily injury, then the killing of deceased was homicide in self-defense; nor does it matter that deceased was legally seeking to arrest defendant, if the defendant had-no notice of the fact, or reasonable grounds to know that he was an officer; and, if you so find, it is your duty to acquit the defendant.”

This instruction presents the law as favorably to appellant as he had the right to ask, but it is insisted that it was nullified by another, numbered 17, which was in conflict with it. This instruction reads as follows: “If you find from the evidence in this case, beyond a reasonable doubt, that the defendant was engaged in operating a still, and that deceased, as sheriff, went to such still for the purpose of arresting such person or persons as were operating the same, and that, while advancing on such still for such purpose, he was shot and killed by the defendant, at a time when he had not fired on the defendant ; and if you further find from the evidence, beyond a reasonable doubt, that the defendant intentionally shot and billed the deceased under such circumstances for the purpose of preventing his arrest by the deceased, you will find the defendant guilty of murder in the first degree. And if you find these things to be true from the evidence, beyond a reasonable doubt, then you are told that it is not necessary that the defendant should have known the particular identity of the deceased at the time.”

We think there was no conflict in these instructions. The one declares the law applicable to the facts as appellant contends them to be; the other announces the law applicable to the case which the State’s testimony tended to establish. It was appellant’s contention that a murderous assault was made upon him and his associates by persons who did not disclose their identity as officers, and who were not known to be officers, and that appellant fired the fatal shot to repel this unlawful assault. On the other hand, it was the theory of the State that the negro was shot to prevent him from escaping, and that appellant immediately thereafter commenced firing at a man known by him to be the sheriff, and that his purpose in firing was to prevent an arrest being made.

As tending to show that appellant could have seen and did know at whom he was firing, testimony was offered to the effect that an officer stood at the place where the sheriff fell, and another at the place where appellant stood when he fired, and that persons thus placed could have seen and recognized each other. The admission of this testimony is assigned as error, and the case of Vance v. State, 70 Ark. 272, 68 S. W. 37, is cited to sustain this assignment.

The facts in the two cases are not similar. In the Vance case one attorney for the 'State, representing the deceased, and another attorney for the State, representing the defendant, gave, under the direction of a State’s witness, “a sort of dramatic representation of the tragedy.” It was there said: “We can very easily see that a defendant might be irreparably injured by having his actions presented in that way before the jury by unfriendly actors not under oath and paid to prosecute him, and if the record fully presented a case of that kind it would certainly be a serious question as to whether it would not call for a reversal and a new trial. But, though the record is a little vague on that point, we conclude from it that the court only permitted the witness to illustrate the relative positions and the distance between the parties at the time of the shooting. We are not certain that it shows more than this, and we cannot therefore say that there was error. We, however, call attention to this point, for it seems to us that there is room enough for all needful display of the dramatic powers of counsel in the regular walks of the profession, and that it is unnecessary, and even unsafe, to go further, and tread more or less on the domain of the witness.”

Here the point at issue was whether appellant could have seen the man who shot, and therefore have known who the man was, and that this man was an officer, the sheriff, and well known to appellant as such. To establish this fact, a witness was permitted to testify that, standing where appellant stood when he fired, he could have seen and recognized a man standing where the sheriff fell. We think this testimony was competent.

An objection somewhat similar was made to the admission in evidence of a plat showing the location of the scene of the tragedy and of the participants therein. This plat was drawn by one who was not present at the time of the shooting but who had later visited the scene, but,the accuracy of the plat was established by witnesses who were present, and we see no objection to its use in enabling witnesses who were present to better illustrate their testimony.

Testimony was offered over the objection of appellant, to the effect that he stated that he had once been shot by officers who raided a still which he was operating, and that he did not intend for this to happen again, and that, if officers came down upon him again, he would fight it out with them. The witness so testifying stated that appellant had reference to prohibition enforcement officers. In oúr opinion, this testimony was competent. The defense was predicated upon the proposition that appellant did not fire to resist arrest, but to repel an assault, and that he had ¡been fired upon by persons not known by him to be officers. It is true' appellant’s threat was not directed against the sheriff specially, or against any other particular officer. But it was a threat against any and all officers who might attempt to arrest him, and tended to show his intention in firing the fatal shot, and that it was fired pursuant to his intention to resist officers attempting to arrest him.

In the case of Stoddard v. State, 169 Ark. 598, 276 S. W. 358, we quoted from 28 A. & E. Enc. of Law, 145, as follows: “No particular words are necessary to convey a threat. Any language which shows this, either on its face or in connection with the circumstances under which it was spoken or written and with the relations of the parties, is sufficient, though it consists merely of innuendoes and suggestions. ’ ’

In the case of Tolliver v. State, 183 Ark. 1125, 40 S. W. 421, we said: “At page 732 of Underhill’s Criminal Evidence (3d ed.) it is said: ‘Under certain circumstances the vague and uncertain threats of the accused may be shown to prove the condition of his mind at the time.of the crime. The rule is applied to his declarations that he is going to kill somebody, without mentioning any names, or that he is going to make trouble, or that he is going to shoot some one, or similar indefinite threats which indicates that he is in an ugly frame of mind and disposed to commit some crime, though not the particular crime for which he is on trial.’ The numerous cases cited in the note to the text quoted fully sustain the law as stated, among these being an Arkansas case, which does not appear as having been published in our official reports.”

Appellant insists that such remarks as he made in this connection did not refer to the sheriff or to any other officers except Federal officers Quillian and "Weaver, who had shot him on a previous occasion. But we think this was a question of fact for the jury.

The court refused to admit testimony to the effect that the deceased sheriff had killed more than one man in making arrests, but the court admitted testimony concerning the general reputation of deceased as being a violent and impulsive man. There was no error in this ruling. The reputation of the deceased for violence could not be properly proved by specific acts of violence to third persons. Underhill’s Criminal Evidence (3d ed.), page 724. In the ease of Hardgraves v. State, 88 Ark. 261, 114 S. W. 216, it was held (to quote the headnot'e in that case) that, “In a prosecution for murder, it is not competent to show the violent and dangerous character of the deceased by evidence of isolated facts or particular acts of violence.” That holding was reaffirmed in the later cases of Shuffield v. State, 120 Ark. 458, 179 S. W. 650; Biddle v. State, 131 Ark. 537, 199 S. W. 913, and Jett v. State, 151 Ark. 439, 236 S. W. 621.

Objection was also made to the testimony of a witness, who had been engaged with appellant in making the liquor, that appellant constantly carried his pistol while employed about the still. But we think this testimony was competent as bearing upon appellant’s mental attitude in regard to not being rearrested for his illegal conduct.

Appellant offered to prove .by the physician who attended the negro that the wound inflicted upon the negro by the sheriff was of a dangerous character, and, when asked by the trial judge what the purpose of the question was, appellant’s counsel answered: “It shows the wantonness of the assault by the officers on the defendant, and that the attack upon the negro was made regardless of the consequences to him, and shows that the sheriff used no caution and was impulsive in shooting him, and I think it is material. ’ ’ The prosecuting attorney remarked that “the sheriff had a right to shoot the negro under the circumstances detailed in evidence.” Appellant’s counsel remarked: “Well, now, the defendant thinks he did not have such a right; so, there you are. ’ ’ The judge then stated: ‘ ‘ The court holds the sheriff did have a right to shoot the witness, Joe Watson, under the circumstances, and the objection is sustained.”

Objection was made to this remark, and the court was asked to withdraw it, whereupon the judge said : “I will do that gentlemen. I will qualify the statement by saying that the sheriff had the right to shoot the witness, Joe Watson, if, under the circumstances as outlined by the witness, Joe Watson, and as outlined by the other witnesses, the sheriff was undertaking to arrest him, and if it occurred or appeared to the sheriff, in the reasonable exercise of his duty as sheriff, that it was necessary to shoot him to arrest him.”

We think it would have been better for the court to have excluded the testimony as to the character of the negro’s wound without comment, but the amended statement of the court is not an incorrect declaration of the law. The sheriff had the right to shoot an escaping felon “if it occurred or appeared to the sheriff, in the reasonable exercise of his duty as sheriff, that it was necessary to shoot him to arrest him.” Section 2377, Crawford & Moses’ Digest; Carr v. State, 43 Ark. 99; Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 854, 15 L. R. A. 558, 29 Am. St. Rep. 68; Green v. State, 91 Ark. 510, 121 S. W. 727; Jett v. State, 151 Ark. 439, 236 S. W. 621.

The cause was submitted to the jury upon the conclusion of the argument at about 7:30 p. m. on December 10, 1931, but, on account of the lateness of the hour and of the illness of a juror, the consideration of the case was not taken up by the jury that night. The condition of the juror became more serious, and a doctor was called to attend him. Upon being advised of the juror’s illness, the trial judge called at his room on the following morning, but it affirmatively appears that the judge’s visit was intended solely to ascertain the juror’s condition and his ability to proceed in the case, and there was no discussion whatever of the merits of the case between the judge and the juror. We think there was no error in this.

When the court was convened, the judge made a statement in open court concerning the juror’s condition, and no request was made that the jury be discharged. On the contrary, it was agreed that the other members of the jury should repair to the room of the sick juror, and that if a verdict was agreed upon it might be received in the juror’s room. The jurors met and deliberated upon the case in the room of the sick juror, and, when it was announced that a verdict had been reached, the court and its officers and the counsel in the case, together with appellant, went to the room where the sick juror was in bed in a house two blocks away from the courthouse, where the verdict was received and the jury was discharged. The juror’s illness developed into pneumonia, and he died a few days later.

It is insisted that this was prejudicial error calling for the reversal of the judgment pronounced upon the jury’s verdict, although appellant had consented to the court’s action in the matter.

In the case of Mell v. State, 133 Ark. 197, 202 S. W. 33, L. R. A. 1918D, 480, the court adjourned, over the objection of the defendant, to a hotel to hear the testimony of a witness who was too ill to be present in court. We there said that there were jurisdictions in which it had been held that this might be done unless prohibited by statute, but that it was not permissible under our practice when objection was made, and we reversed the judgment in that case on that account.

The case of Carter v. State, 100 Miss. 342, 56 So. 454, Ann. Cas. 1914A, 369, was cited among other authorities, as having so held. It was said in that case that: “If the defendant had consented to the proposition to go with the court and jury to the place where the witness was, and there take her testimony, and if her testimony had in this manner been taken, we do not think the defendant could have objected to the irregularity. 'But that is not the question before us. In this case the defendant’s application for a continuance was refused; one of the grounds of the refusal being that he declined to accept the proposition of the court to go with the jury to the place where the witness was confined by sickness, and there take her testimony. Such a proposition was, we think, no answer to his application for a continuance, and should not be considered in determining his right to a continuance.”

It thus appears that the Supreme • Court of Mississippi would have held that the irregularity in the proceeding was not prejudicial, had the defendant consented, as the record in the instant case shows was done.

In the case of Jackson v. State, 102 Ala. 76, 15 So. 351, it was held by the Supreme Court of Alabama that a verdict was void which had been, delivered to the judge outside of the courthouse, but it was not there shown, as it was here, that the defendant had consented that this should be done.

It was held by this court, in the case of McVay v. State, 104 Ark. 629, 150 S. W. 125, that a defendant who was convicted of murder in the first degree had the power to waive the presence of the trial judge during the progress of the argument of the case and to consent to the argument being proceeded with in the absence of the judge.

In the case of Davidson v. State, 108 Ark. 191, 158 S. W. 1103, Ann. Cas. 1915B, 436, which was also a capital case, it was held that the defendant had the right to waive his presence in court upon the return of the verdict, and that the verdict might be returned in his absence with his consent.

We therefore hold that, having consented, appellant was not prejudiced by the reception of the verdict at a place other than the courthouse.

It is insisted that it was error to permit the jury to proceed after one of its members became ill, as he was entitled to have his case considered and decided by jurors in normal condition. This objection was not made at the trial; indeed, it appears that appellant consented that it should be done.

The physician who attended the juror was interrogated by counsel for appellant concerning the juror’s condition, and testified as follows: “Q. A man as sick as he was, in your opinion was he capable and competent of deliberating upon serious and important matters? A. Yes, sir. Q. You think he was? A. Yes, sir.”

It is also assigned as error that the trial judge interviewed the sick juror in the absence of his fellows, and in the absence of appellant and his counsel. But there is incorporated in the record a statement by the trial judge to the following effect. When he was advised of the juror’s illness, he called at his room to inquire- as to the juror’s condition. He told the juror that unless he felt perfectly able to continue to serve as a juror he would be discharged, but he was assured by the juror that he felt able to continue his duties as a juror in the case. The judge further stated: “At that time the jury had not commenced its deliberations, and upon being assured by both the nurse and the doctor, in addition to the statement of the juror, that the juror was rational, and that for him to stay in that room in the bed and deliberate, take part in the deliberations of the jury, was not detrimental to his chance for recovery, and upon the appearance of the juror to me at that time, and the statement of the juror that he was able and willing to proceed, the jury was told to commence its deliberations whenever they saw fit to begin their deliberations.”

It would, of course, have been improper, under these circumstances, for the trial judge to have discussed with the juror any question of law relating to the verdict to be returned, but this he did not do. Wacaster v. State, 172 Ark. 983, 291 S. W. 85; Shue v. State, 177 Ark. 605, 7 S. W. (2d) 315; Phares v. State, 158 Ark. 156, 249 S. W. 551.

The judge’s conversation with the juror related only to the physical and mental condition of the juror, for the purpose of ascertaining whether the jury should be discharged. We conclude therefore that there was no prejudicial error in this incident. Spence v. State, 180 Ark. 1123, 24 S. W. (2d) 331.

It is also insisted that prejudicial error was committed in refusing appellant a preliminary trial. This feature of the case was inquired into in a habeas corpus proceeding brought to require a preliminary hearing, which the court refused to order.

It appears that at this time the defendant had been indicted, and that he was immediately thereafter put to trial. It also appears that there had previously beenl no preliminary trial for the reason that appellant’s father had requested that, pending appellant’s trial, he be removed from the county and confined elsewhere on account of the inflamed condition of the. public mind arising out of the killing, and it does not appear that appellant or his counsel had demanded a preliminary examination prior to his indictment.

It was held in the ease of Ex parte Anderson, 55 Ark. 527, 18 S. W. 856, that one who has been committed to jail by a coroner for the crime of murder, upon an inquisition conducted in his absence, was not entitled to be taken' before a magistrate for preliminary examination.

The purpose of the preliminary examination is to determine whether an accused person should be held to' await the action of the grand jury, so that he may not in the meantime be unlawfully deprived of his liberty. No useful purpose would have been served by holding a preliminary examination. It is provided by statute that: “If, however, the magistrate is of opinion, from the examination, that there are reasonable grounds to believe the defendant guilty of the offense charged, he shall be held for trial and committed to jail, or discharged on bail if the offense be bailable.” Section 2932, Crawford Moses’ Digest.

Section 2934, Crawford & Moses’ Digest, provides that: “Justices of the peace shall have no power to admit to bail in capital offenses, murder or manslaughter.”

A justice of the peace would have been without authority to admit appellant to bail upon an examining trial before indictment returned, if there were reasonable grounds to believe he was guilty, even of manslaughter, and he had already been indicted for the crime of murder in the first degree. A justice of the peace would therefore have had no jurisdiction of the case. Ex parte Kittrell, 20 Ark. 499; Bass v. State, 29 Ark. 142; Ex parte Graham, 150 Ark. 236, 234 S. W. 176.

A motion was filed to quash the indictment upon the ground that the jury commissioners who selected the grand jury which returned the indictment and the petit jurors who tried the case were not sworn, and that there was no affirmative showing that § 6344, et seq., Crawford & Moses’ Digest, relating to the manner in which jury commissioners shall perform their duties, were complied with. The record does not affirmatively show that the jury commissioners were sworn or that the statute defining the manner in which their duties shall be performed was complied with, but there was no showing to the contrary, and the presumption must be indulged that the statute was substantially complied with.

Similar contentions were made in the case of Brewer v. State, 137 Ark. 243, 208 S. W. 290, but in overruling them it was there said: “It is true that the record in the present case does not contain the orders of the court showing these facts, but, as we have just seen, the presumption is that the grand jury was organized in accordance with the requirements of law unless the contrary shall be made to appear affirmatively by the record. It may have been in the present case that the docket of the circuit judge showed that he had appointed jury commissioners, and that he had selected the grand jury in the manner prescribed by the statute, but that these orders had not been entered of record.” It was there said that, under our system, there are two modes by which a grand jury may be selected. One is pursuant to the provisions of the statute; the' other in the exercise of the court’s inherent power; so that juries may be impaneled, even though the jury commissioners wholly fail to perform their duty.

Certain other errors are assigned, but they relate to matters which have been definitely decided adversely to appellant’s contentions and require no further discussion.

Upon the whole case we find no error prejudicial to appellant, and the judgment must be affirmed. It is so ordered.