author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Myers.
    Opinion delivered April 18, 1927.
    1. CARRIERS — NEGLIGENCE IN MAKING DELIVERY. — Evidence held to ■show negligence of the railroad company in permitting a produce company, which was to be notified on arrival of a shipment of potatoes, to remove a portion of the shipment without an order from the shipper and without a bill of lading.
    2. Carriers — negligence—failure to notify shipper. — Evidence held to show that a carrier was negligent in failing to notify, within reasonable time, the shipper of the purchaser’s failure to accept the shipment.
    3. Carriers — negligence—failure to notify shipper. — Even if a carrier had no notice of the purchaser’s refusal to accept a shipment, if it could by exercise of reasonable diligence have known of such refusal, it became its duty to notify the shipper.
    4. Carriers — shipment to consignor’s order. — Where a car of potatoes was shipped to consignors with instructions to notify a third person on arrival of shipment, the carrier was not entitled to deliver the shipment without production of the bill of lading.
    5. Carriers — presumption from receipt of goods in good order.— Evidence that a car of potatoes was in good condition when received by the carrier, and were damaged when delivered to the consignee, after the shipment had been rerouted twice, made a prima facie case of negligence against the carrier.
    Appeal .from Crawford 'Circuit Court; James Cochran, Judge;
    affirmed.

      Thomas B. Pryor and Vincent M. Miles, for appellant.

      C. M. Wofford, for appellee.
   Mehaffy, J.

The appellees, plaintiffs below, brought suit against the railroad company in the Crawford Circuit Court on a carload of sweet potatoes shipped from Van Burén, Arkansas, to Electra, Texas. It was after-wards diverted to Salt Lake City, and then diverted to Butte, Montana. The car was delivered to the railroad company in Van Burén, Arkansas, on October 23, 1924, and a bill of lading was issued to the plaintiffs. The car was consigned to the Myers Commission Company, which was the partnership name of plaintiffs, at Electra, Texas, with directions to advise the Texas Produce Company and to allow inspection and deliver on tibe written order of the Myers Commission Company. The car was transported from Yan Burén to Electra on schedule time, and arrived at Electra in good condition on the 27th. day of October, 1924. The Texas Produce Company was promptly notified of its arrival. A draft had been forwarded to- Electra, Texas, with the written order of the plaintiffs attached to it, for the delivery of the car upon the presentation of bill of lading and the payment of the freight. The agent of the Port Worth & Denver City Railway Company at Electra, Texas, permitted an inspection of the car, and the representative of the Texas Produce Company got into the car and removed a number of baskets of the potatoes, and, and after this was learned by the railroad company, the agent then called on the Texas Produce Company, and it refused to take the car, although a portion of tlie contents had been removed and the bill of lading had not been surrendered.

It appears that the railroad company did not know about the removal of" the potatoes from the car until the morning of the 30th of October, three days after it had arrived at Electra, Texas. The railroad company then asked for disposition of the car, but tried to prevail on the Texas Produce Company to take up the draft, but the produce company refused to do this. The produce company, however, did pay the amount of freight, but did not bring the order which was attached to the draft at the bank. The company held the money that the produce company paid for the freight until it had instructions to divert the car.

The Texas Produce Company never signed for the car. The carrier received instructions to divert the car, and it was diverted, and the company then paid back to the produce. company money that it had paid for freight. The shipper was advised of the action of the Texas Produce Company in refusing to take the car, on November 1, and,-on that day, ordered the car diverted to Salt Lake City, and, on November 4, ordered it diverted to Butte, Montana. When it arrived at Butte, Montana, the potatoes were in damaged condition.

Plaintiff alleged in its complaint that it was damaged in the sum of $508.25, the' amount that it would have received if the Texas Produce Company had accepted the car and paid the draft. Plaintiff alleged that the potatoes were in good condition when received by the railroad company, and the bill of lading provided that the defendants should deliver said shipment to the consignee only upon the written or telegraphed order of J. W. Myers, but that, without receiving any such order, the railroad company carelessly and negligently permitted the Texas Produce Company to unload and dispose of about 100 bushels of said pota-toes_ without having paid the draft, and, without any written or telegraphed order from Myers, permitted the Texas Produce Company to take charge of said shipment, and that, after the produce company had paid the freight and disposed of a part of the potatoes, the railroad company permitted the produce company to purchase about 100 bushels of potatoes at a local market at Electra, Texas, and place them back in the car, to take the place of the potatoes that defendant had unlawfully allowed the produce company to take out, and the company returned to the produce company the freight, and then notified plaintiff that the produce company had refused to accept the car; that, by this action on the part of the railroad company, the car was delayed for a period of about five days, and potatoes of inferior quality were loaded- in the car.

Plaintiff alleged that, in order to prevent as much loss as possible, it then diverted the car as above mentioned; that, when it' reached Butte, Montana, it was found that the baskets had been broken and large quantities of potatoes had been bruised and frozen, and were in a decayed condition; that, through the negligence of the railroad company, the car of potatoes was delivered to the Texas Produce Company, and unnecessarily delayed.

The defendant filed an answer, denying all the material allegations of the complaint.

J. W. Myers testified that he was a member of the firm of Myers Commission Company, and that, on the 23d day of October, 1924, he shipped a carload of sweet potatoes to Electra, Texas. He introduced a copy of the bill of lading, which was in the usual form, and is a receipt for 546 bushels of sweet potatoes; that they were strictly U. S. No. 1 grade of potatoes, consigned to the Myers Commission Company at Electra, Texas, notify Texas Procluce Company, with permission to inspect, and directions to the railroad to deliver the potatoes upon surrender of the bill of lading and written order of the Myers Commission Company; that he got no returns on the car, but understood that it had not been delivered; and he testified that he put in a long distance call and talked over the telephone to the agent of the railroad company, and afterwards received a wire from the agent; that he asked the agent if he had delivered the car and if they had paid the freight, and he said they had not. Witness said he told the agent that he had information that the Texas Produce Company had hauled 100 bushels of the potatoes off to Wichita Palls, and that, after another car came in, they filled up with other potatoes, put them in their place. Witness said they had a customer- in Butte, Montana, and got in touch with them and sold them the car, but that, when it got to Butte, it was in such bad condition they had to let the customer handle it for what they could get out of it. He said that the order attached to the draft on the car was as follows: “On presentation of this order, and after all freight charges have been paid, deliver to Texas Produce Company, Electra, Texas, Car A. B. T. 12497-sweet potatoes.”

.Witness further testified that draft was never taken up, and that he had sold the potatoes at a price of $1.75 a bushel, and that that was a fair price for the potatoes at that time; that that would have amounted to $955.50, and, deducting the freight, would leave $754.30; that they actually received $276.41, and had to pay $25 brokerage and $5.36 telegraph and telephone messages, making a loss to the shipper of $508.25.

Bill of lading with the draft attached had been forwarded to a bank in Electra, Texas, with a notation on it allowing inspection and to deliver on written order to Meyers Commission Company.

By agreement, statement of L. V. Omberg, cashier, made to Huggins, agent- at Electra, Texas, was introduced in evidence. This statement showed that the freight was $201.21, that the car was received at Yan Burén on the 23d of October, 1924, and, after its arrival at Electra, Texas, the Texas Produce Company was notified, and that the car remained on hand until October 29, and nothing had been said as to whether they had accepted it; that then, on the morning of the 30th of October, the produce company was asked about it, and stated they were not going to accept it, and an investigation was made, and found that a man had got into the car, but they did not know how many potatoes he removed; called on the Texas Produce Company, and was told they would not accept the car, and finally the Texas Produce Company refused to pay the draft, but paid the freight, but did not bring the order which was attached to the draft at the bank; that witness held this money until they had instructions to divert the car; that he was not in position to watch shippers’ order carloads of freight to see that the consignee does not get into them before payment of draft and freight charges.

Joseph W. Wallisch testified, in substance, that he was an inspector for the Department of Agriculture of Montana, and lived in Butte. That he inspected this car, and testified that potatoes have commercial grades, but that practically no cars coming from the South are graded according to United States grading rules. That the potatoes would not have met the requirements if they had not been decayed; they, would simply have been graded as sweet potatoes. There was no evidence that they had been frozen. > .

Wm. F. Sweet testified, in substance, that he was the manager of Sweet Brothers, Inc., of Bntte, Montána; that the car arrived in Butte on November 17 in very bad condition, showing about 36 per cent, decay; that a large percentage of the baskets were crushed and broken, and that the damage was caused by rough handling and being in transit too long.

Hugh Rouw testified, in substance, that, when an inspection of a shipment of sweet potatoes is permitted by the bill of lading, it only means that the receiver of the potatoes is permitted to break the seal and to look at the goods. In the diversion order given to the agent of the railroad company at Van Burén is the following:

“This is to notify: We will handle this car to the very best advantage, and if there is any difference between the amount that we realize from the sale and the original price that it was sold to the Texas Produce Company, we will file claim for the difference on the ground that agent at Electra allowed part of the contents of this car to be removed, and failed to notify us that the car was on hand, allowing it to remain at Electra for five days.”

The defendant asked a number of instructions which the court refused to give, and the court gave a number of instructions over the objections of the defendant. These are all brought forward in defendant’s motion for a new trial, but the defendant only, argues two questions. Its first contention is that, "when the Texas Produce Company ivas notified of the arrival of the car, the railroad company had complied with its contract, and that the plaintiffs could not recover unless it ivas shown that some of the potatoes were removed from the car and not put back; and, second, that the trial court adopted the wrong measure or rule of damage in permitting plaintiff to recover the contract price at which the potatoes were sold at Electra, Texas, less freight charges.

The appellant argues that, when the carrier promptly notified, the Texas Produce Company of the arrival of the car and gave them a reasonable time to remove the potatoes, it had performed its duty as a carrier, and was no longer liable as an insurer. They argue also that the Texas Produce Company was the agent of the shipper.

We think that it is unnecessary to decide whether the railroad company, in this case, was an insurer, or simply liable for negligence, because, under the view we take of the case, the railroad company was negligent in permitting the Texas Produce Company to remove a part of the potatoes without the order from the shipper and without the bill of lading, and it was also negligent in its failure to notify the shipper in a reasonable time, and this would be true whether there were any contract or not, but, under the contract in this case, the carrier was prohibited from delivering the car to the Texas Produce Company without the written or telegraphed order of the shipper and without the payment of the draft and freight charges.

“The carrier is not required to notify the shipper until it has notice, or, by the exercise of ordinary diligence, could have known, of the refusal of the consignee to receive the goods. After the carrier has notified the shipper that the consignee has refused to receive the goods shipped, it is liable only as a bailee, and the consignor is bound to demand delivery of the goods to himself and to take charge of them.” 10 C. J. 271.

It will be observed that, whether the carrier had notice of the refusal or not, if it could, by the exercise of ordinary diligence, have known of the refusal, then it became its duty to notify the shipper. The car was received on October 27, and, according to the proof in the case; ‘the carrier itself used no diligence, and did not know, until three or four days later, anything about the produce company having gone into the car, and had made no efforts to find out whether it had inspected or whether it intended to take the car. The Texas Produce Company was not the consignee, but was merely to be notified, and the carrier then was, under its contract, bound to deliver the car to the Texas Produce Company when the written’ order was presented and payment was made according to the contract.

“Where a bill of lading or a shipping receipt contains a clause providing that a third person shall be notified of the arrival of the goods, or where it contains this clause and an additional clause reciting that the goods are shipped to the consignor’s order, the carrier is not authorized to treat the person to be notified as a consignee, and, if it delivers the goods to him without production and surrender of the receipt or the bill of lading, it will be liable to the true owner of the goods for any loss resulting from such delivery. Delivery of the goods, under these circumstances, without surrender of the receipt or the bill of lading, constitutes a conversion. A direction of this character in a shipping receipt or a bill of lading raises no presumption that the person to be notified is the consignee, but, on the contrary, indicates that the carrier is not entitled to deliver the goods except on production of the bill of lading. The fact that a carrier was instructed to notify a third party of the arrival of goods gives him no right to require a delivery without the production and the surrender of the bill of lading, .properly indorsed.” 10 C. J. 259; Tedford v. C. R. I. & P. Ry. Co., 116 Axk. 198, 172 S. W. 1006.

There are many cases cited in Corpus Juris under the section last referred to which fully sustain the rule announced.

“A shipment to the order of the consignor with directions to notify the consignee is an unmistakable indication by the shipper to the carrier that the title to the goods will not pass and the duty to deliver will not arise until the draft has been paid, the bill of lading taken up, and the latter presented to the railroad company.” Louisville, etc., R. Co. v. U. S. Fidelity Co., 148 S. W. 671, 125 Tenn. 658.

In this case we think that the evidence is ample to .show that the goods were in good condition when received by the carrier and were damaged when delivered to the consignee at Butte, Montana, and this would make a prima facie case of negligence of the carrier, if there were no other proof or evidence introduced, but the evidence introduced clearly showed negligence on the part of the carrier, and it would be liable to the shipper if the goods were injured by its negligence, whether it was an insurer or not. , .

The appellant next contends that the court erred in its measure of damages. We think it a sufficient answer to this to call attention to the fact that the evidence shows that the market value at Butte, Montana, was greater than the market value at Electra, Texas, or greater than the measure contended for by the plaintiff, and the appellant could not be prejudiced by this because the undisputed evidence is that plaintiff was entitled to recover more, if the rule now contended for by the appellant had been adopted, than he did recover.

Numbers of instructions were requested by the appellant and refused by the court, but the appellant does not argue any of them and does not argue the instructions given by the court. It is therefore unnecessary to set out the instructions or call attention particularly to them. We are of the opinion, however, that the court properly instructed the jury, and there is sufficient evidence to sustain the verdict. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Madison County v. Simpson.
    Opinion delivered April 18, 1927.
    1. Counties — disallowance op claim — time op trial on appeal. —It was not error for the circuit court to hear an appeal from, an order of the county court disallowing a claim in the absence of the county judge and his attorney, where the prosecuting attorney was present and announced that he had no defense, and the circuit court was not advised that the county judge desired to contest the allowance.
    2. Counties — authority op circuit clerk to purchase typewriter. — The circuit clerk of Madison County was authorized to purchase a typewriter, under Crawford & Moses’ Dig., § 1371, authorizing him to purchase things necessary for his office; §§ 1976 and 2283, prohibiting a contract without an appropriation therefor, having no application to that county.
    Appeal from Madison Circuit Court; W. A. Dickson, Judge;
    affirmed.

      J. 8. Jameson and J. B. Harris, for appellant.

      J. W. Nance and Earl Blansett, for appellee.
   Mehaeey, J.

The appellee, D. Simpson, filed the following account in Madison County Court on the 6th day of June, 1925:

£' County of Madison, to Dick Simpson, circuit clerk and ex-officio recorder.

1 Royal Typewriter for recording for county, cash basis............................................................$107.50

Total............................................................................................................$107.50

£ £ State of Arkansas, County of Madison.

“I, D. Simpson, do solemnly swear that the foregoing claim is correct, and that no part was paid previously; that the materials furnished were actually furnished, and that the charges therefor do not exceed the amount allowed by law-or customary charges for similar services or materials furnished when paid for in lawful money of the United States, and that such accounts, claims, demands, or fee bills are not enlarged, enhanced or otherwise made greater in consequence or by reason of any estimated or real depreciation in value of county warrants. Dick Simpson.

“Subscribed and sworn to before me this 6th day of June, 1925. (Seal) Dewey Glass, Clerk.”

And the court made the following order disallowing the claim:

“Examined and disallowed: First, for the reason that there was no appropriation made to buy fixtures for the courthouse; second, for the reason that the quorum court of October, 1925, refused to make. a levy to buy typewriter for the circuit clerk’s office; third, that the county never bought a typewriter from D. Simpson. This 21st day of January, 1926. Charlev King, county judge.

‘Filed January 22, 1926.

“D. Simpson, clerk.”

Tie appellee filed affidavit for appeal, the appeal was granted, and the circuit court reversed the finding of the county court and found in favor of the appellee for $107.50.

The appellant, Madison County, filed motion for a new trial, which was as follows:

“First. The court erred in permitting said cause to be heard without calling the case in regular order and hearing the cause in the absence of Charley King, county judge of said county, who had been in attendance on said court throughout the entire term for the purpose of contesting the allowance of the claim herein allowed by the court.'

“Second. That said case was heard and judgment rendered without any evidence being adduced before the court in proof of said claim. ;

“Third. That said cause was heard and judgment rendered in the absence and without the knowledge of J. B. Harris, the attorney employed by the county judge of said county for the purpose of representing said county in contesting the allowance of said claim herein allowed.

“Fourth. That the court erred in allowing said claim and rendering judgment against the county for same, since there was no appropriation made to pay such claim by the levying court of said county.

“Fifth. That said judgment so rendered herein is contrary to law.

“Sixth. That said judgment is contrary to the evidence, since there was no evidence adduced.

“Seventh. That, for the misconduct of the plaintiff, D. Simpson, in having or procuring said cause to be heard in the absence of the county judge and the, said attorney, which conduct resulted in a surprise to defendant that ordinary prudence could not have guarded against, to the great prejudice of the defendant.

“Premises being considered, defendant, Madison-County, through its county judge, Charley King, respectfully moves the court or judge in vacation to set aside the judgment herein rendered against it and to grant it a new trial, in order that justice may be done; but that, in case the court overrules this motion, defendant prays the court or judge to grant it an appeal to the Supreme Court of Arkansas. Charley King, county judge.’'

The court overruled the motion for new trial, and the appellant prayed an appeal to tbe Supreme Court, which was granted.

There is no bill of exceptions; no evidence was introduced except the verified account. The circuit court based its finding on § 1371 of Crawford & Moses’ Digest, which is as follows:

“He shall preserve the seal and other property belonging to his office, and shall provide suitable books, stationery, furniture, and other things necessary for his office.” .

The appellant contends that the court erred in permitting the cause to be heard without calling it in regular order and in the absence of the county judge; second, that the judgment was rendered without any evidence; third, that it was rendered in the absence and without the knowledge of the attorney appointed to represent the county; fourth, that the court erred in allowing the claim, because no appropriation had been made by the levying court, and he also contends that the judgment is contrary to the law”, and that no evidence was introduced, and it ought to be reversed for misconduct of plaintiff in procuring said cause to be heard in the absence of the county judge and his attorney.-

The appellant relies on § 1976 of Crawford & Moses’ Digest, as amended by Acts of 1917, which provides no county court or agent of any county shall hereafter make any contract on behalf of the county unless an appropriation has previously been made therefor and is wholly or in part unexpended, and in no event shall any county court or agent of any county court make any contract in excess of any such appropriation made, and the amount of any such contract or contracts shall be limited to the amount of the appropriations made by the quorum court.

Another section, 2283, of Crawford & Moses’ Digest, prescribes the penalty for violating the above section.

It . is earnestly contended by appellant that these statutes prevent or prohibit a recovery by the appellee in this case, and we think it would do this but for the act of March 3, 1919, which exempts Madison County from the provisions of this act. The act of 1917 amends § 1976 of Crawford & Moses’ Digest, but excepts some counties from the provision of said act, but does not except Madison County. But the act of 1919, amending the act of 1917, does exempt Madison County from the provisions of the act. We therefore conclude that these statutes do not apply to Madison County.

As to whether plaintiff was authorized to purchase the typewriter depends upon the meaning of the clause, “and other things necessary for his office,” in § 1371 of Crawford & Moses’ Digest. This section authorizes the clerk to provide suitable books, stationery, furniture, and other things necessary for his office. If' Madison County is exempt from the provisions of § 1976 and acts amendatory thereof, and we think it is, then the clerk could buy these things that were necessary without an appropriation having been made. Is a typewriter for recording for the county necessary? '

We think that the order of the trial court overruling the motion for new trial answers the contentions of the appellant as to calling the case in regular order in the absence of the county judge and his attorney. The motion for new trial states that the county judge had been in attendance on the court throughout the entire term for the purpose of contesting the allowance of the claim. The order of the circuit court recites that no attorney was entered as special counsel, but, as a matter of fact, Mr. Harris had been employed to aid the prosecuting attorney, but that his employment had not been made known to the court or to the prosecuting attorney. The county judge, according to the recital in the order of the circuit court, had been present several days, but did not advise the court that he desired to contest the cause. The county judge, being in attendance, doubtless knew that it was about the end of the term, and he does not allege that he called the case or had it called, or that he took any action at all with reference to it, and it is also recited in the order that the prosecuting attorney was present, and announced that he had no defense to make against the claim.

In the view we take of the case we do not think'the circuit court erred in disposing of the case when it did. The prosecuting attorney was present as the representative of the county, but evidently took the view that, the typewriter being necessary, the clerk had authority to purchase it. Necessary, as used in the Digest, does not mean absolutely essential. The word “necessary” must be considered in the connection in which' it is used, and, in this sense, we think it means convenient, useful, appropriate,¿'suitable, proper, or conducive to the end sought. If it meant absolutely essential, then there are many things necessary and'proper to have in the clerk’s office that could not be said to be absolutely essential, but it seems to us that a typewriter is certainly one of the things necessary which the clerk would be authorized to purchase. Motley v. Pike County, 233 Mo. 32, 135 S. W. 39; Ewing v. Vernon County, 216 Mo. 681, 116 S. W. 518.

If Madison County had not been exempted from the provisions of the act, of course the clerk would have been bound by the statute relied on by appellant, and could not have purchased anything or made any contract binding the county unless there had been an appropriation made. But, since Madison County is exempted from the provisions of that act, and the other statute authorizes clerks to buy things necessary for their offices, we conclude that the clerk had authority to purchase the typewriter for the county, and the judgment of the circuit court is therefore affirmed.


author: McHaney, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Perry County.
    Opinion delivered April 18, 1927.
    Judgment — res judicata. — The former decision of the Supreme Court denying recovery of taxes illegally assessed on the ground that the payment was voluntary held res judicata on a subsequent application for a refund of such taxes, under Crawford & Moses’ Dig., § 10180, notwithstanding certain other taxpayers had recovered a refund, under such section, of taxes paid under said assessment.
    Appeal from Perry Circuit Court; Marvin Harris, Judge;
    affirmed.

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

      Boyd Cypert, for appellee.
   McHaney, J.

Appellant lias stated the case correctly, and we adopt its statement as follows:

“In April, 1923, appellant herein brought a suit in the Perry Circuit Court against Oscar Brazil, as sheriff and ex-officio collector, to recover $3,957.21, which the complaint alleged had been paid to the collector by the plaintiff on an erroneous assessment of taxes made against the property of the plaintiff for the year 1922, which sum it was alleged the collector had in his possession for the use of the plaintiff. The case was tried in the Perry Circuit Court on an agreed statement of facts, and a judgment was rendered dismissing the plaintiff’s complaint. An appeal was duly prosecuted to the Supreme Court, which affirmed the judgment of the Perry Circuit Court, on the ground that the payment, of the taxes illegally assessed was voluntary. This case is reported in 166 Ark. 246-251, 266 S. "W. 66, under the style of the Chicago, R. I. & Pacific Ry. Co. v. Brazil.

“In the meantime, eighty-four other taxpayers of Perry County filed a petition in the Perry County Court, under the provisions of § 10180, C. «fe M. Digest, for a refund of the taxes paid by them under said erroneous assessment, which claim for a refund was allowed by this court in the case of Paschal v. Munsey, 168 Ark. 58-64, 268 S. W. 849.

“On the 24th day of March, 1925, and subsequent to the decision of this court in the case of Chicago, R. I. & P. Ry. Co. v. Brazil, supra, appellant filed its petition in the Perry County Court, 'setting up the erroneous assessment of taxes made against its property for the* year 1922 and the payment of same, and asking for a refund of same under the provisions of § 10180 of C. & M. Digest. The county, in response to this claim, pleaded the judgment of the court in the case of Chicago, R. I. & P. Ry. Co. v. Brazil, supra, as res judicata. The Perry County Court denied appellant’s petition. An appeal was duly perfected to the Perry. Circuit Court and a' judgment was ^rendered in that court denying said petition, from which judgment this appeal is prosecuted.”

The judgments of the county and circuit courts are right. The same point now before the court was decided adversely to appellant’s contention in the case of Chicago, R. I. & P. Ry. Co. v. Brazil, 166 Ark. 246, 266 S. W. 66. Appellee set up this case in la proper plea as res judicata, and the circuit court properly so held. No useful purpose could he served in reviewing the facts in the former case, as we hold that the former decision was right, and it is decisive of this case.

The judgment is affirmed.


author: McIíaney, J.

text:
    Ward Furniture Manufacturing Company v. Weigand.
    Opinion delivered April 18, 1927.
    1. Master and servant — assumed risk. — An experienced employee, thoroughly familiar with the machine at which he was working and with the proximity of exposed cogs, being injured by his hand slipping from a lever to the exposed cogs, held to have assumed the risk, where he had made no complaint as to the lack of a guard over the cogs.
    2. Master and servant — assumed risk and contributory negligence distinguished. — The defense of contributory negligence, resting upon the fault or negligence of plaintiff concurring with that of defendant, is distinguished from the defense of assumed risk, which rests on contract, and does not imply negligence on the master’s part.
    3. Master and servant — assumed risk as a defense. — The defense of assumed risk remains in full force in this State, though contributory negligence has been abolished as a complete defense in this State as to all corporations except while engaged in interstate commerce.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;,
    reversed.

      G. W. Knott, for appellant.

      Cravens & Cravens, for appellee.
   McIíaney, J.

. This is an action by appellee to recover damages for a personal injury sustained by him in appellant’s factory, in which several fingers of his right hand were torn off while working on a dovetail machine. He alleged in this complaint that his injury was the result of the negligence of appellant in furnishing him an unsafe place in which to work, in that he was required to work upon this machine, with the cogs which operate the machine located in a dark place, without any guards about them, which, he alleged, could have been done without interfering with the operation and efficiency of the machine. The power which operated this machine was brought to it by a belt operating over a pulley, and, when the operator wished to stop the machine, he did so by pushing the belt, on to an idle-pulley by means of a bar of wood located underneath the machine, in close proximity to the cogs. In attempting to stop the machine by shifting the belt to the idle-pulley, his right hand slipped off the ‘bar of wood and was caught in the cog-wheels, resulting in the injury aforesaid.

Appellant denied the allegation of negligence, and pleaded assumption of risk.

The plaintiff, appellee, was the only witness in the case, and he testified very frankly about the facts in the case. At the conclusion of the testimony appellant requested a peremptory instruction, which the court denied. The case was submitted to the jury, under instructions not complained of here, which resulted in a verdict and judgment of $2,000 against appellant, from which comes this appeal.

The only ground urged here for reversal is the refusal of the court to instruct a verdict for appellant, because the uneontradicted evidence of the appellee himself shows that he assumed the risk of the injury complained of, and of any negligence of appellant in the manner charged, and that therefore the court should have said as a matter of law that he was not entitled to recover. We agree with counsel for appellant in this contention. The substance of the proof is that appellee had been working for the appellant continuously from the 28th day of December, 1921, until the date of his injury, which was on October 22, 1925; that he was injured on one of the older dovetail machines, which he had operated at intervals from the time he beg'an working for appellant to the date of his injury. When he first began working on this machine, it was located on the floor of the factory above, but, for approximately two years before the dáte of the injury, it had been located on the ground floor of the factory, and had a different instrumentality for switching the belt to the idle-pulley, but he had operated this machine on the lower floor at intervals as much as three or four hours at a time. He knew the machine did not have a guard on it to protect his hand from getting into the cog-wheels, and he knew that it never had had such a guard; he knew the location of the shifting lever relative to the cogs, that is, how close the end of the shifting lever came to the' cogs; he knew that, if he got his fingers into the cogs, he would be injured, and says that, when he attempted to shift the belt at the time of his injury, he saw the shifting lever. He had never registered any complaint to appellant or to any of its officers or agents about the absence of a guard or that the machine was dangerous to operate in its then condition. He admitted .that he was an experienced employee, thirty-five years of age, and represented himseif to be an experienced machine man when he applied for employment with appellant, and had been engaged in operating this and other machines for appellant for the past four years. There was a big electric light right over the machine, only a short distance above it, and was burning at the time appellee was hurt.

In view of the undisputed facts we think it was the duty of the trial court to have instructed a verdict for the appellant.

In the case of Hunt v. Dell, 147 Ark. 95, 266 S. W. 1055, this court said: ‘ ‘ The evidence revealed that appel-lee was a young man, almost grown, of intelligence, and, at the time of the injury, he had had considerable experience in the operation of the machinery on which he was injured. If the failure to replace the compressed air starter was a defect in the machinery, it was patent to one of reasonable intelligence, exercising ordinary cáre for his own 'safety. The danger of going between the flywheels to assist in turning them, so as to crank the engine, was likewise obvious to such an employee. Under this state of the case, established by the undisputed facts, the law attributes to the employee knowledge and appreciation of the danger incident to the work in which the employee is engaged, and exempts the employer from any liability to him on account of the injury received. ’ ’

There is a distinction between the defenses • of assumed risk and contributory negligence, and nowhere is this distinction better stated than in an opinion rendered by Judge Biddick in Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, and, on page 372, he used this language: ‘ ‘ There is, of course, a distinction between the defense of assumed risk and that of contributory negligence. The defense of contributory negligence rests on some fault or omission of duty on the part of the plaintiff, and is maintainable when, though the defendant has been guilty of negligence, yet the direct or proximate cause of the injury is the negligence of the plaintiff but for which the injury would not have happened. It applies when the plaintiff is asking damages for an injury which would not have happened but for 'his own carelessness. On the other hand, the defense of assumed risk is said to rest on contract, which is generally implied from the circumstances of the case; it being a term which the law imports into the contract, when nothing is said to the contrary, that the servant will assume the ordinary risks of the service for which he is paid. The defense of assumed risk comes within the principle expressed by the maxim, volenti non fit injuria. This defense does not impliedly admit negligence on the part of the defendant and defeat the right of action therefor, as the defense of contributory negligence does, for, where the injury was the result of a risk assumed by the servant, no right of action arises in his favor at all, as the master owes no legal duty to the servant to protect him against dangers the risk of which he assumed as a part of his contract of service. Narramore v. Cleveland R. Co., 96 Fed. Rep. 298.

“In other words, the defense of assumed risk rests on the fact that the servant voluntarily, or at least without physical coercion, exposed himself to the danger, and thus assumed the risk thereof. Having done this of his own accord, he has no right, if an injury results, to call on another to compensate him therefor, whether he was guilty of carelessness or not. Smith v. Baker (1891), Appeal Cases, 325; Opinion of Lord Bowen in Thomas v. Quartermaine, 18 Q. B. Div. 685.”

Again, on page 374, this language is used: “In the application of the doctrine of assumption of risks a distinction must be also made between those cases'where the injury is due to one of the ordinary risks of the service and where it is due to some altered condition of the service, caused by the negligence of the master. The servant is presumed to know the ordinary risks. It is his duty to inform himself of them; and, if he negligently fails to do so, he will still be held to have assumed them. The decision in the recent case of Grayson-McLeod Co. v. Carter, 76 Ark. 69, 88 S. W. 597, rests on that ground, as do many other cases found in the reports. But the servant is not presumed to know of risks and dangers caused by the negligence of the master, after he enters the service, which changes the condition of the service. If he is injured hy such negligence he cannot he said to have assumed the risk, in the absence of knowledge on his part that there was such a danger; for, as we have before stated, the doctrine of assumed risk rests on consent; but, if the injury was caused in part by his own negligence, he may 'be guilty of contributory negligence. On the other hand, if he realizes the danger, and .still elects to go ahead and expose himself to it, then, although he acts with the greatest care, he may, if injured, be held to have assumed the risk. ’ ’ Citing cases.

This is not a case where the servant has made a complaint to the master of the unsafe condition of the machinery and a promise had been made to correct the condition, as was the case of St. Louis, I. M. & S. R. Ry Co. v. Holman, 90 Ark. 555, 120 S. W. 146, nor is it a case of a young land inexperienced employee, where, it is held in numerous decisions by this court, by reason of his youth and inexperience he is not aware of and does not appreciate the danger incident to the work or the danger of the place he is assigned to work, in which cases he does not assume the risk of his employment until his master apprises him of the dangers, as was so .ably stated by Mr. Justice Battle in the ease of Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, 19 S. W. 600. In this case the court said: “If, having sufficient intelligence and knowledge to enable him to see and appreciate the danger to which he will be exposed, he knowingly assents to occupy a place set apart to him by the master, and does so, he thereby assumes the risks incident thereto, and dispenses with the obligation of the master to furnish him with a better place. It is then no longer a question whether such a place could not, with reasonable care and diligence, be made safe. Having voluntarily accepted the place occupied by him, he cannot hold the master liable for injuries received by him because the place was not safe. If, however, the servant, by reason of his youth and inexperience, is not-.aware of or does not appreciate the danger incident to the work he is employed to do or to the place he is engaged to occupy, he does not assume the risks of his employment until the master apprises him of the dangers.”

But, in the case at bar, the appellee was not only a man thirty-five years of age, but was a man of great experience in the operation of machinery in general, and of this particular machine, and knew the exact location of the cog-wheels and the location of the shifting-lever and its distance from the cog-wheels. ■ He knew what would happen to him if he should get his hand into the cog-wheels. We therefore hold, as a matter of law, that appellee assumed the risk of the danger incident to that employment.

Contributory negligence, on the other hand, has been abolished as a complete defense in this State as to all corporations, except while engaged in interstate commerce (§ 7145, C. $ M. Digest)but the doctrine of assumed risk still remains in force and effect in this State, and has been sustained by a long line of decisions of this court, and has been applied in numerous cases where the undisputed facts are applicable, such as in this case, as a complete bar to recovery.

The result of our views is that the court should have directed a verdict in appellant’s favor, and, for the error in failing to do so, the judgment is reversed, and, it appearing’ that the evidence has been fully developed, the cause will be dismissed.

It is so ordered.


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    Millhorn v. Jonesboro, Lake City & Eastern Railroad Company.
    Opinion delivered April 18, 1927.
    1. Appeal and error — conclusiveness op verdict — Where disputed questions of defendant railroad company’s negligence and fraud in obtaining a release from an injured brakeman were submitted to the jury under instructions not complained of, the verdict in favor of the defendant is binding on the Supreme Court.
    2. Trial — instruction not invading jury’s province. — In an action against a railroad company, an instruction that, if the jury found for plaintiff, they should determine the amount and deduct therefrom a sum named as the total amount of checks already paid by plaintiff to defendant, held not erroneous as invading the jury’s province,, where there was no dispute as to the amount received by plaintiff.
    Appeal from Mississippi Circuit Court, Chickasawba .District; W. W. Bandy, Judge;
    affirmed.

      J. T. Cost on, for appellant.

      Eugene Sloan, for appellee.
   McHaney, J.

Appellant has stated the facts correctly, and we adopt it as follows:

“This is an action by Millhorn against the Jones-boro, Lake City & Eastern Railroad Company to recoyer damages for an injury sustained by him, August 28, 1924, while in the employ of said railroad company as brakeman on one of its freight trains. The complaint alleges and- the evidence shows that the ‘ steps on either side of the caboose sagged so that the rear end was about six inches lower than the front end, thereby causing the same to be defective and dangerous, all of which was unknown to the plaintiff, but the same was known, or, by the exercise of reasonable, ordinary care could and would have been known, by the defendant. On said day, when plaintiff was attempting to board said train, just west of Blythevdlle, by reason and on account of said defective 'condition of said step, when the plaintiff placed his foot thereon and attempted to board the train, his foot slipped and fell to the ground, dragging the plaintiff along until his foot caught in the unblocked' frog in defendant’s track, thereby crushing, mangling, fracturing and breaking the bones in the plaintiff’s ankle.’ Millhorn was confined in the hospital, as a result of his injuries, from August 18 to September 4, 1924. Dr. Lutterloh, the physician for the railroad, attended him. After he left the hospital he made several trips from his home back to Jonesboro for examination by Dr, Lutter-loh, from time to time, as directed by the doctor. About January 1, 1925, he was directed to report at Jonesboro again for examination. ‘I started up •'o his office, and he said he was going to dinner, and asked me if there was anything urgent, and I s¡a.íd No, I just wanted to report to him, and he said..Let’s see, what is your case? and I told him, and he said, Well, let’s go down here in the drugstore, and he put me -in one of these soda fountain ffiairs and looked at my foot, and said, That is fine; you are all ready to go to work. He said, You get in touch with Mr. Garner; you are ready to go to work; you are O. K.’ He then reported to Garner, the manager, who assigned Millhorn to a job.”

Before he went to work he signed a release agreement, releasing appellee, for an expressed consideration of $1, “from any and all claims for damages, past, present or prospective (including whatever has been suffered in the past and what may be suffered in the future from known or unknown results or effects) for or by reason of said injury; and the party of the first part accepts the consideration named herein in full, complete and final compromise and satisfaction of all the matters existing between the parties hereto relating or growing out of the accident and injuries aforesaid.”

• The release is dated January 1, 1925. The case was tried by a jury, resulting in a verdict and judgment for defendant, and plaintiff has appealed to this court.

While it is suggested that the undisputed evidence shows appellee was guilty of negligence, and that the release above mentioned was obtained from appellant by fraud, both of these questions were submitted to the jury under proper instructions, at least they were not. complained of, and the verdict of the .jury is therefore binding on this court, both being disputed questions of fact. The only real contention made by counsel for appellant is that, the court erred in giving to the jury instruction No. 11, over his objection. The instruction complained of is as follows: “If, under all the evidence and instructions given you, you should find that the plaintiff is entitled to á verdict, you shall first determine this amount and deduct from said amount so determined the sum of $687.47, which is the total amount of the checks that the defendant has already paid to the plaintiff, and your verdict should be for the difference.”

The contention is made, and specific objection was raised to it on this ground, that it invaded the province of the jury, in that the court should have left to the jury to say Iioav much money had been paid appellant after the injury, and while appellant was-doing no Avork and performing no service for appellee. We do not think the instruction is open to this objection. The evidence' as to the amount received by appellant from the date of his injury, August 18, to the date of his returning to work, January 7, 1925, was undisputed. Appellant himself testified to the various checks he had received, and the instruction of the court simply told the jury that, if they found for the plaintiff in any sum, they should first deter-, mine such sum and then deduct from that the total amount of the checks that had already been paid to plaintiff, and stated the sum to- be $687.47. If the court should have been in error as to the correct amount, counsel for appellant should haA^e suggested to the court the error in his calculation and had the amount corrected, or the jury could have added up the amount of checks he had received and have deducted the correct amount, if the court had erroneously stated the total.

No error appearing, the judement of the circuit court was right, and it is therefore affirmed. • - '


text:
    Missouri & North Arkansas Railroad Company v. Fowler.
    Opinion delivered April 18, 1927.
    1. Physicians and surgeons — “medical attention” defined. — A contract by which a doctor, in consideration of a railroad pass over lines within the State, agreed “to' render free medical attention to patrons and employees” when injury has been sustained by reason of the company’s negligence, held not to require surgical attention to an injured employee without compensation.
    2 Physicians and surgeons — “free medical attention” construed. — A contract between a railroad, and a doctor by which the doctor agreed to render “free medical attention” to patrons and employees of the railroad, being written by the latter, must be strictly construed against it.
    3 Contracts — intention of parties. — In determining the meaning of a contract, courts try to determine the intention of the parties as ascertained from the words employed, the connection in which they are used, and the subject-matter.
    4. Physicians and surgeons — contract to give medical attention. — A doctor’s contract to render medical attention to employees of a railroad in cases where the company is liable for an injury did not requirq such attention to ah employee who executed a general release to the company, which denied any liability.
    Appeal from Boone Chancery Court; Sam Williams, Chancellor;
    affirmed.

      Shouse & Rowland, for appellant.

      George J. Crump, for appellee.
   McHaney, J.

This suit was begun in the Boone Circuit Court by the First National Bank of Harrison against appellees, Dr. J. H. Fowler and J. B. Price, to recover on a past due promissory note for $305, dated November 2, 1923, with interest from date at 10 per cent., executed by Price to Dr. Fowler for medical and surgical treatment, which note had been assigned to the bank by Dr. Fowler. Price filed an answer, admitting the indebtedness, and a cross-complaint against appellant railway company, who appeared and moved to dismiss for mis-joinder. Its motion being, overruled, appellant asked that the cause be transferred to equity, which was, done by consent of all parties. Appellant then filed an answer to the cross-complaint of Price, and made its answer a cross-complaint against Dr. Fowler.- The facts are substantially as follows:

Dr. J. H. Fowler is a reputable physician and surgeon residing in Harrison. He had been a local surgeon for appellant in 1922, and, on February 2, 1923, he was again thus honored, appellant’s vice president and general manager writing him the following' letter:

“Agreement.

“Dear sir: I am handing you herewith annual pass No. T295, good over this railroad between stations in Arkansas, limited to December 31, 1923, which has been issued in your favor account local surgeon, with the understanding that, in accepting same, you agree, during the period it remains in effect, to render free medical attention to all patrons and employees of this company when (*alled upon. Such medical attention to be rendered to patrons and employees when injury has been sustained by them on account of negligence of this company or its employees and when this company is legally liable for such injury. It being distinctly understood, however, that nothing in this agreement-nor the acceptance by you of pass referred to authorizes you to act as an official or representative of this company in any matters, medical or otherwise.

“This agreement is written in duplicate, and the return to me of the attached copy, properly signed and dated, will be sufficient record of agreement and cancel all previous agreements between the parties hereto covering medical attention.

“This agreement and the transportation herein mentioned shall remain in effect until December 31, 1923, unless previously canceled by either party giving to the other thirty days advance notice.

Exhibit A.

“J. C. Murray,

“Vice Pres. & Gfen’l. Manager.

“I acknowledge receipt of transportation referred to ' and accept the above named conditions.

(Sig.) “J. H. Fowler,

“Harrison, Ark.”

In August, 1923, appellee, Price, while working in the shops of appellant, received a severe, painful and dangerous injury to a very delicate and private part of his person, under such circumstances, as he claimed, and the railway company denied, liability therefor. He was taken to the office of Dr. Fowler, where he received treatment in the nature of first aid, and was then removed to his home, where, at his and the railway company’s joint request, he was treated for several months, two skillful and successful surgical operations being performed by Dr. Fowler during such time. ' On October 18 Price made a settlement with appellant for $236, and executed a written release therefor, at the conclusion of which the following paragraph ■ appears: “I accept the above amount in full settlement, less fifty dollars advanced me September 5, 1923, or a total of $186, with understanding ' railway company pays medical and dpctor bills due for injury. ’ ’

On the same date Dr. Fowler, at the suggestion of Mr. Flinn, claim agent for appellant, rendered a statement of his account in the sum of $362.50 for professional services to Mr. Price, payment of which was, on October 26, refused, for the reason that, under it's construction of the pass contract, such services were to be given free. Dr. Fowler then demanded payment of Price, and accepted the note sued on from Price, which he later transferred to the First National Bank.

Only two witnesses testified, Dr. Fowler for Price on his ■ cross-complaint against appellant, Mir. Flinn for appellant. The contract hereinbefore set out between Dr. Fowler and appellant was offered in evidence, as was also the release agreement executed by Price.

• At the conclusion of the testimony the chancellor entered a decree in favor of the First National Bank against Fowler and Price for the amount of the note, with accrued interest, in the sum of $372.60, add in'favor of Price on his cross-complaint against the railway company in the sum of $372.60. and dismissed the cross-corn-plaint of appellant against Dr. Fowler, from which the railway company has appealed.

The principal question for consideration here, as well as in the court below, is the proper construction to be placed upon the written contract between Dr. Fowler and appellant. Dr. Fowler’s construction of the contract was that, under it, he was to do office work in minor injuries, and give first aid treatment to persons suffering injury at appellant’s shops, who would call at his office for treatment, but that, if he went out to homes, he would be entitled to make a charge therefor. Appellant, on the contrary, insists that the contract was clear and unambiguous, and, in accepting said pass, he agreed “to render free medical attention to all patrons and employees of this company when called upon. Such medical attention to be rendered to patrons and employees when injury has been sustained by them on account of negligence of this company or its employees, and when this company is legally liable for such injury. It .being distinctly understood, however, that nothing in this agreement nor the acceptance by you of pass referred to authorizes you to act as an official or representative of this company in any matters, medical or otherwise.” Appellant insists that this clause of the contract makes it obligatory on Dr. Fowler to render, not only medical attention, but surgical attention to such employees and patrons of the company as it may call upon him to render. We do not agree with appellant in this contention. . In the first place, this is a contract written by appellant, and must be strictly construed against it. Nowhere in the contract is.it provided that Dr. Fowler shall render any surgical attention, to any employee or patron. Furthermore, we do not think it was in the contemplation of the parties, when the contract was written by appellant and accepted by Dr. Fowler, that he should be called upon to render any extensive medical attention to appellant’s employees and patrons, but only such as might require first aid treatment, or for temporary or minor complaints and injuries. If appellant’s contention is right, a situation might very easily be seen whore the entire time, or a large portion thereof, of the doctor might be taken up in treating patrons and employees of appellant who received injury due to its negligence. But such was not the intention of the parties, as evidenced by this contract. It was not intended that any great amount of the doctor’s time should be demanded by appellant, and this construction is borne out by the small consideration for the contract, a pass over appellant’s line in Arkansas.

In determining the meaning of the contract the courts try to determine the intention of the parties and give effect to that intention. We find the law on this subject well expressed in 6 B. C. L., 225: ‘ ‘ Generally speaking, the cardinal rule in the interpretation of contracts is to ascertain the intention of the parties' and to give effect to that intention if it can be done consistently with legal principles. It has been said that to this paramount rule all others are subordinate. The parties should be bound for Avhat they intended to be bound for, and no more. The courts will hold them bound to that extent, if their intention can he arrived at. To hold any one bound further Avould be to impose on him an obligation AAdiich he never assented to, or intended to take upon himself, and Avould be the height of injustice and oppression. ’ ’

Again, the same authority, in § 226, uses this language: “The intention of the parties is to be ascertained from the words employed, the connection in which they are used, and the subject-matter in reference to which the parties are contracting.”

Other cardinal rules for the construction of contracts are laid doAvn by the same authority in subsequent sections.

Many authorities might be cited from our own court to sustain this legal principle. This conclusion is fur-' ther borne out by the language of the last sentence of the contract above quoted, stipulating that the doctor could not act as an official or representative of the company in any matter, medical or otherwise, conclusively showing that he was not occupying- the position of a general physician or surgeon for the company. Then the clause in the contract providing that he should render medical services free of charge only in cases where the company is legally liable for such injury strengthens the contention of appellee, for, in the instrument executed by Price, called a “general release,” it denied any liability, and the payment of only $236 somewhat strengthened the idea of non-liability, inasmuch as it was agreed that Price received a very painful, 'severe and dangerous injury from which he suffered several months. Since the medical attention was not required by the contract to be rendered except in cases where the company was legally liable, it follows that, if the company should require the services of a doctor in non-liability cases, he would be entitled to compensation for such services.

Our conclusion is that tlie decree of the chancery court is right, and it is therefore affirmed.


author: Hart, C. J.,

text:
    Courtney v. G. A. Linaker Company.
    Opinion delivered April 25, 1927.
    1. Appeal and error — conclusiveness of finding_Where'testi-mony of plaintiff contradicted that of defendant, a finding for plaintiff is conclusive on appeal.
    2. Principal and agent — revocation of agency — notice.—A creditor of a store owner may recover the price of goods sold to her agent, after her agent had purchased the business from her, where she had not notified the creditor of the revocation of the agency.
    3. Evidence — best evidence.- — In a creditor’s action against a grocer for the price of goods sold to the agent of the grocer who had bought out the grocer’s business, testimony as to publication in a newspaper of a notice of the sale of the business held inadmissible on the ground that proof of the publication was the best evidence.
    Appeal from Desha Circuit Court; T. G. Parham, Judge;
    affirmed.

      STATEMENT OP FACTS.
    The G. A. Linaker Company, a corporation, Mrs. Emma E. Courtney to recover the sum of $321.61, with accrued interest, alleged to be due upon a merchandise account. Mrs. Courtney defended the suit on the ground that she had not purchased the merchandise sued for.
    G. H. Linaker, president of the G. A. Linaker Company, a corporation, engaged in the business of handling wholesale packinghouse products at McGehee, Arkansas, was the principal witness for the plaintiff. According to his testimony, the invoices exhibited with the complaint are for merchandise sold to Mrs. E. E. Courtney, and there is a balance due on said account of $321.61, with six per cent, interest from May 5, 1925, unpaid. C. A. Courtney, a son of Mrs. E. E. Courtney, had charge of the store and purchased the goods, which were charged to her account. The plaintiff never knew that the defendant sold out to C. A. Courtney and executed a bill of sale to him and his brother for the merchandise on hand. The plaintiff dealt exclusively with Mrs. E. E. Courtney, and never had any notice whatever that there was any change of ownership in the business.
    According to the evidence for the defendant, Mrs. E. E. Courtney operated a store in the town of McGehee which was managed by her son, C. A. Courtney. Subsequently she sold the business to C. A. Courtney and Guy H. Courtney and executed to them a bill of sale. They moved the business to another part of McGehee and oper-. ated it as their own. They told a salesman of the plaintiff that they had purchased the business from Mrs. Courtney, their mother, and were operating the store as their own. They purchased the goods involved in this lawsuit after they had bought out their mother. Mrs. Courtney had nothing whatever to do with the purchase of the goods.
    The case was tried before the circuit court sitting as a jury, and from a finding and judgment in favor of the plaintiff the defendant has duly prosecuted an appeal to this court.

      Williamson d Williamson, for appellant.

      Poff d Smith, for appellee.
   Hart, C. J.,

(after stating the facts). The record shows that the business was first owned by the defendant, Mrs. E. E. Courtney, and that she subsequently sold it to her two sons, who moved the store from one part of the town of McGrehee to another part of it. According to the evidence for the plaintiff, it had no notice that Mrs. Courtney had sold the business to her sons and that they were operating it as their own when the bill of goods in question was purchased. It is true that the goods were purchased, after the bill of sale had been executed, but, according to the evidence for the plaintiff, it had .no notice that Mrs. Courtney had sold the business to her sons, and it sold the goods to the sons believing that they were the agents of their mother and were purchasing the goods for her. While the testimony of the plaintiff on this point was contradicted by that of the defendant, the finding of the circuit court in favor of the plaintiff is conclusive upon us upon appeal.

The case then stands here as if the • plaintiff, not being notified of the sale.of the store to O. A. Courtney and his brother, and consequently not being notified of the revocation of his authority as the agent of his mother, was justified in acting upon the presumption lof its continuance. On its face the 'agency of C. A. Courtney as the representative of his mother in operating the store was a continuing authority, on which the plaintiff had a right to rely until its revocation. Persons who deal with an agent before notice of the recall of his powers are not affected by the recall. Hatch v. Coddington, 95 U. S. 48; Insurance Co. v. McCain, 96 U. S. 84; Johnson v. Christian, 128 U. S. 374; 9 S. Ct. 87, 2 C. J. § 650 (3), page 920, and 21 R. C. L. § 37, page 860.

In a note to 41 L. R. A. (N. S.), at page 664, it is said that it is settled that the acts of an agent, after his authority has been revoked, bind a principal as against third persons who, ill tbe absence of notice of tlie revocation of tlie agent’s authority, rely upon its continued existence. It is also said that the eases are practically unanimous on this general rule, and most of them summarily state it as if it were an axiom. Many cases are cited in support of the rule. The cases hold that the duty of the principal to notify third persons of tlie termination of the agency is of the same character and requires the same degree of certainty as that which the law imposes upon the members of a partnership in the case of dissolution as a measure of protection against liability by reason of the subsequent acts of the former members of the dissolved firm.

This court is committed to the rule that the retiring members of- a dissolved partnership continue liable to creditors who deal with the remaining members upon the faith of its continued existence without notice of its dissolution. Bluff City Lumber Co. v. Bank of Clarksville, 95 Ark. 1, 128 S. W. 58, and cases cited.

It is next insisted that the testimony of C. A. Courtney to the effect that notice was published in a newspaper in McGeliee, stating that the business would be operated thereafter in the name of- C. A. Courtney, grocer, was notice to the creditors that the sale had been made. The court properly sustained an objection to this testimony because proof of publication of the notice itself would have been the best evidence, and no foundation was laid for admitting secondary evidence of the publication of the notice. Moreover, if primary .evidence of the publication of the notice had been introduced, it would only have been evidence of the fact of the sale and consequent revocation of the authority of 0. A. Courtney to act as agent for his mother as between themselves. Under the authorities cited above, after a principal has appointed an agent in a particular business, parties dealing with him in that business have a right to rely upon the continuance of his authority until in some way informed of its revocation.

It follows that the judgment must be affirmed'.


text:
    Carter Special School District v. Hollis Special School District.
    Opinion delivered April 25, 1927.
    1. School and school districts — .legislative creation — dissolution. — A special school district which was organized under Acts 1915, p. 1280, could not thereafter be abolished by the county hoard of education and its territory distributed between two adjoining districts.
    2. Schools and school districts — legislative creation. — When the Legislature creates a special school district, the county board of education has no power to change its boundaries without express authority from the Legislature so to do.
    3. Courts — power of circuit court on appeal. — Where the county court had no authority to make an order dissolving a special school district created by the Legislature, the circuit court had no jurisdiction on appeal, and thus no validity could be given to the order on appeal.
    4. Schools and school districts — effect of void order of dissolution. — Where the county court rendered a void order dissolving a special school district in 1915, the district Could attack the order in a suit instituted in 1925, in the absence of circumstances creating an estoppel.
    5. Schools and school districts. — recovery of funds erroneously distributed. — A school district rightfully entitled thereto cannot recover funds erroneously distributed to and consumed in educational purposes by a district to which they did not belong.
    6. Schools and school districts — recovery of funds erroneously distributed. — A school district, dissolved by a void order and erroneously deprived of its revenue, should proceed by injunction to prevent a wrongful apportionment of the taxes or bring suit against the district erroneously receiving them before they are expended for school purposes by the district improperly receiving them.
    Appeal’ from Cleveland Chancery Court; H. R. Lucas, Chancellor;
    reversed.
    STATEMENT 01? EACTS.
    Carter Special School District of Cleveland County, Arkansas, 'brought this suit in equity against Hollis Special School District of Cleveland County, Arkansas, and the members of the county board of education in said county, to enjoin said board from apportioning the funds voted and collected for Carter Special School District to Hollis Special School District or any other school district in- said county. The complaint also prays that a master be appointed to take proof and ascertain the amount due by Hollis Special School District to Carter Special School District and order the amount so found to be paid into the county treasury of Cleveland County for the -use and benefit of Carter Special School District.
    The record shows that on March 26, 1915, an act of the Legislature was approved organizing certain territory in Cleveland County, Arkansas, into a special school district, to be known as Hollis Special School District. Acts of 1915, page 964. On March 30, 1915, an act of the Legislature was approved organizing certain territory in Cleveland County, Arkansas, into a special school- district to be known as Carter Special School District. Acts of 1915, page'1280. On the 6th day of September, 1915, the county court of Cleveland County, Arkansas, made an order annexing to Hollis Special School District three sections of land situated in Carter Special School District, and Carter Special School District was dissolved and the balance of the territory thereof annexed to the common school district from which it had been taken by the Legislature in forming Carter Special School District.
    An appeal was taken to the circuit court, and the order and judgment of the county court was there affirmed. The chancellor, under the pleadings and proof in the case at bar, found the facts as stated above and entered of record a decree sustaining a demurrer of the defendants to the complaint of the plaintiff on the ground that plain-' tiff did not have legal capacity to maintain the action. To reverse that decree the plaintiff has duly prosecuted an appeal to this court.

      B. L. Beasley, for appellant.

      George Broivn, for appellee.
   Hart, C. J.,

(after stating the facts). The decree of the chancery court was erroneous. It appears from the record that Carter Special School District was organized by a special act of the Legislature in 1915, and the county board of education could not thereafter abolish said special school district and add a part thereof to Hollis Special School District and the remaining part of its territory to the common school district from which the same had been taken.

It is the settled law of this State that, when the Legislature itself creates a special school district, neither the county board of education nor any other governmental agency has the power to change the boundaries thereof, without express authority of the Legislature so to do. School Dist. No. 25 v. Pyatt Special School Dist., 172 Ark. 602, 289 S. W. 778; Park v. Rural Special School Dist. No. 26, ante p. 514; and Helvering v. McDougal, 119 Ark. 162, 177 S. W. 937.

It follows that the order of the county court dissolving Carter Special School District and including a part of its territory within Hollis Special School District was void. In so far as it affected the territory of the plaintiff, it was a void order which the county court had no power to make, and consequently no validity could be given to the order by appeal to the circuit court. The circuit court could acquire no greater jurisdiction upon appeal than that possessed by the county court. In the very nature of things, if the county court had no jurisdiction the circuit court could acquire none upon appeal.

But it is insisted that the judgment of the county court cannot be attacked at this late date. We do not agree with counsel in this contention. If the order was void, and not merely voidable, no validity could be given to it by waiting from 1915 until June, 1925, when the pres-1 ent suit was instituted. No special circumstances are disclosed by the record why this delay could create any estoppel. As said in Cotter Special School District No. 60 v. School District No. 53, 111 Ark. 79, 162 S. W. 59, certiorari will issue at the instance of the directors of a dismembered school district to quash a void order of the county court affecting the same, when there are no special circumstances barring the action hy laches or estoppel, in discussing the question., the court said:

“The directors of the special school district could not, by consent, deprive the people of the district, whom they represent, of their rights by consenting to an illegal and void order dismembering the territory of the district. Anri it was their duty, as soon as they discovered their mistake, to seek to have the same corrected, and it cannot be said that either the directors or the people, by long acquiescence in the conditions created by the void order, have estopped themselves from seeking to have the same quashed.”

In the case at bar no special circumstances are pre- ■ sented which might operate as an estoppel or as a bar by laches, even if it could be said that lapse of time, under special circumstances, might bar -the plaintiff from maintaining its action against the defendant.

Plaintiff also asks for a master to be appointed to state an account between Carter Special School District and Hollis Special School District as to the funds heretofore received hv the latter district which should have been apportioned to the former. Tn this contention counsel for the plaintiff is wrong. In Lepanto Special School District v. Marked Tree Special School District, ante p. 82, it w;is held that school taxes collected under a regular assessment and levy and erroneously distributed to and consumed in educational purposes by a district to which • tbev did not belong, cannot be recovered by the district which was rightfully entitled thereto. In such a case the district erroneously deprived of its revenue should proceed by injunction to prevent the wrongful assessment and apportionment of the taxes, or should bring a suit for the recovery thereof before such funds have been expended for educational purpose's by the district erroneously receiving them.

The result of our views is that the decree will he reversed and the cause remanded for further proceedings in accordance with this opinion and with the general principles of equity.


author: Hast, C. J.,

text:
    Newport v. Young.
    Opinion delivered April 25, 1927.
    1. Licenses — fee for restaurants. — A license fee of $50 for each restaurant or wiener stand in a city of the second class with a population of 4,000 held not unreasonable as matter of law.
    2. Licenses — regulation of business. — A city may impose a license fee on a business sufficiently large to cover the expense of issuing the license and to pay the expenses incurred in enforcing such police and sanitary inspections as may he requited.
    3. Licenses — regulation of business. — An ordinance imposing a license fee of $50 per annum on restaurants and wiener stands is not invalid because the officers made no inspection of such places, and the money collected was used for another purpose.
    4. Licenses — validity of fee of restaurants and wiener stands. ■ — That two defendants operating wiener stands did not do nearly as much business as the two defendants operating restaurants held not to make arbitrary and discriminatory an order which imposed an annual license fee of $50 on both wiener stands and restaurants.
    Appeal from Jackson Circuit Court; Dene 77. Coleman, Judge;
    reversed.
    STATEMENT OP PACTSy
    William Ruff nor, W. L. French, Joe Cullins and W. C. Young were each fined $25 in the mayor’s court in the city of Newport for violating an ordinance licensing certain occupations. A great many occupations are enumerated in the ordinance, and the license fee for each restaurant or hamburger or wiener stand is $50 per annum. The defendants appealed to the circuit court, and the cases were consolidated and tried before the circuit court sitting as a jury. The ordinance was introduced in evidence.
    The mayor of the city was also a witness. According to his testimony, a great many complaints of disorderly conduct were made about the restaurants. People frequently gathered there at night and were sruiltv of disorderly conduct. The demands of those running the restaurants for protection against disorderly persons were so numerous that the council passed the ordinance in ques-tioxi so that additional policemen might be employed at night.
    According to the testimony of the city, health officer, it was necessary for him to look closely after restaurants and wiener stands where meats, milk and other foods and drinks were prepared and served in order to see that they were kept in a sanitary condition. It would require one man’s time to do this, and his services would he worth $250 per month.
    According to the evidence for the defendants, no inspection or regulation was made of their places of business by either the police or the health department of the city of Newport, and no such regulation as testified to by the city Avas needed. They operated their places so as to keep them in a sanitary condition, and no disorder'ever occurred there from their patrons or other persons who congregated there.
    The circuit court found that Newport was a city of the second class, Avith a population of 4,000, and that a license fee of $50 was beyond, the reasonable expense of issuing the license and regulating the business. Therefore the circuit court held that $50 Avas excessive as a fee for regulating the business, and Avas an unreasonable exercise of the police power. Prom the judgment rendered the city of NeAArport has duly prosecuted an appeal to this court.

      John II. Caldwell, for appellant.

      Gustave J ones, for appellee.
   Hast, C. J.,

(after stating the facts). We do not think the license fee of $50 for each restaurant or Aviener stand is so large and so out of proportion .to any lawful pui’pose to which it could be applied in the use of the police poAver that it must be declared, as a matter of laAv, unreasonable and illegal. Tn Fort Smith v. Gunter, 106 Ark. 371, 154 S. W. 181, it Avas held that a charge ¡by the city of $25 per year, $15 for six months and $3 for one month as a license fee on restaurants, was not an unreasonable charge. In the very nature of things there might be a necessity for closer inspectioñ and regulation in one city tlian in another. Conditions vary greatly in different localities, and the city council is the judge of each case. The amount the city council has a right to demand for a license fee depends upon the extent and expense of supervision made necessary by the business in the city or town where it is licensed. A fee sufficient to cover the expenses of issuing the license and to pay the expenses which may be incurred in the enforcement of such police and sanitary inspections as may be lawfully exercised over the business may be required. The amount necessary to meet all expenses cannot in all cases be ascertained in advance, and expenses reasonably anticipated may be included. In fixing the fee the city'may take notice of local conditions and the extent and character of police regulation required. Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509; Texarkana v. Hudgins Produce Co., 112 Ark. 17, 164 S. W. 736, 51 L. R. A N. S, 1035; Kirby v. Paragould, 159 Ark. 29, 251 S. W. 374; North Little Rock v. Kirk, ante p. 554. When the testimony introduced by the city as to the requirements necessary for police and sanitary inspection of restaurants is considered, it cannot be said as a matter of law that a license fee of $50 is unreasonable and therefore illegal.

It is next contended' that the ordinance was invalid because the evidence for the defendants shows that no police inspection of their places of business was made. Under the authorities cited the city council was the judge of whether local conditions required police and sanitary inspections. Whether or not the officers discharged their duty can be of no avail in declaring the ordinance valid or invalid. Neither can the fact that the money collected was used for another purpose be considered by us in testing the validity of the ordinance. There is a way of compelling officers to discharge their duties and to expend the city funds for the purpose for which they were collected, and the fact that they did not do so, if such be the fact, can iñ no manner affect the validity of an ordinance of this kind.

It is next insisted that the ordinance is arbitrary and discriminatory because two of the defendants were operating- wiener stands and that they did not do nearly as much business as the other two defendants who were operating restaurants. This is a matter which we cannot consider. It may be that the situation and local conditions required more expense in regulating wiener stands than in regulating restaurants. This might be due from the character of the people frequenting the different places. In any event this was a matter addressed to the city council, and cannot be considered by the courts as affecting- the validity of licensing ordinances.

The result of our views is that the court erred in declaring the ordinance on its face to be a revenue measure and therefore void. The judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.