text:
    Langston v. Hughes.
    Opinion delivered January 25, 1926.
    1. Lost instrument—burden of proof.—The burden is upon one who claims title under an alleged lost instrument to establish the execution, contents and loss thereof by the clearest, most conclusive and satisfactory proof.
    2. Appeal and error—conclusiveness of chancellor’s findings.— Findings of fact by a chancellor are reversed only where they are clearly against the preponderance of the evidence.
    3. Equity—laches.—Though plaintiffs claimed a legal title to land, yet, when they voluntarily went into chancery, and asked affirmative relief which only a court of equity could grant, the defense of laches is available against them.
    4. Equity—laches.—Where plaintiffs were apprised of defendant’s claim of ownership of land and that he was paying the taxes thereon, and they waited 15 years without offering to pay the taxes or challenging plaintiff’s ownership, and until oil and gas leases and assignments thereof to various persons had taken place, plaintiffs were barred by laches.
    Appeal from Ouachita Chancery Court, First Divi- • sion; J. Y. Stephens, Chancellor;
    affirmed.

      Powell, Smead & Knox, Haynie <& Westfall, A. L. Kay ser, D. M. Short & Sons, O. R. Sholars and Gibson & Lovett, for appellant.

      Gaughan <& Sifford and Streett & Streett, for appellee.
   Wood, J.

This lawsuit, in the last analysis, involves the title to the fractional SE % of the SE14 of section"21, township 15 south, range 16 west, in Ouachita County, Arkansas. The appellants claim title as the heirs and lineal descendants of William G. Johnson, who died about the year 1862, seized and possessed of all the lands in controversy. The appellees claim title to the lands by adverse possession through James W. Hughes and his grantors for more than seven years prior to the filing of the complaint in this action. The appellees also claim that the appellants are barred by laches from maintaining the action. As a basis for their claim of title by limitation, the appellees alleged that James W. Hughes acquired title to the laqds from Martha J. Cramer, who acquired title 'by deed from Lavinia Johnson, and that Lavinia Johnson acquired title by deed from Sherman C. Wakefield, the patentee of the Government. They alleged that all of these deeds had been lost or misplaced, that same had never been recorded, and that the appellees were unable to present copies thereof; that Hughes and his predecessors in title took possession of the land, and had been in possession under their respective deeds, for more than seven years prior to the institution of this action.

On the issue of title by limitation, Mrs. Janet Hughes testified that her husband, J. W. Hughes, took possession of the land about 1902. He held possession of same until he died in 1918. After his death witness and her children held possession until the time of the oil boom. Witness was sure that her husband had a deed to the lands in controversy. He spoke to her about it several times. Witness was sure that she saw the deed. Witness had searched for the deed everywhere she could think of, but thought it was lost when her husband carried his deeds to Camden to have the first abstract made. Since the controversy arose her youngest son had also searched for the deed. The deeds were kept in a box in a trunk, and witness had looked among all the old papers, but was unable to find the deed, and she was sure that it was lost. Witness ’ mother, Mrs. Martha J. Cramer, was the grantor in the deed. The date of the deed from witness’ mother to her husband to the SE14 of SE]4 of section 21, township 15 south, range 16 west, was a few days before witness and her husband conveyed to C. E. Cramer a square containing four acres in the northeast corner of the tract. Witness ’ husband could not write a deed to C. E. (CoRincil) Cramer until witness’ mother made witness’ husband a deed. Witness lived on the land twenty-one years until she moved to Camden the year before giving her testimony. None of the appellants have made any claim to the land within the last ten or twelve years before this action was brought.

■On cross-examination witness testified that her husband bought from her mother two forties that lay north and northwest of the tract in controversy. Witness could not remember the numbers. The deed to those two forties and the deed to the tract in controversy were the only two deeds to witness’ husband that witness remembered her mother signed. Witness thought the deed from witness’ mother to witness’s husband to the land in controversy was executed in January, 1905, but she didn’t remember the day of the month and didn’t remember the character of the deed, but she was sure that she had seen it. Witness knew that she would not have signed the deed to Council without seeing the other deed. She also knew that she would not have signed the deed to Council Cramer from other circumstances. Witness was asked: ‘ ‘Can you tell me what land was described in that deed? ’ ’ (referring to the land in controversy), and answered: “The SE% of the SE% of section 21, township 15 south, range 16 west.” She was'asked whether the land was south or north of the fifth principal meridian, and did not answer. She was asked, “How did the description read in the deed, Mrs. Hughes?” and answered, “Well, I don’t know.” Question: “Did it read section 21, township 15 north, range 16 west?” and answered, “Yes.” Witness didn’t know whether it was a warranty deed or a quitclaim deed, and knew that it was a conveyance of a fee simple estate. She didn’t know what language was used in making the conveyance. She was not in the least interested in deeds in those days, and didn’t remember or pay any attention. Her husband did all that. Witness read the deed from her mother to her husband before she and her husband signed Council’s deed. Witness didn’t remember that she read it then, and didn’t remember that she heard her husband speak of it then, but did hear him speak of it afterwards. Witness finally stated that she heard her husband speak of the deed at the time he made the deed to Council Cramer. Witness knew that Mr. Cook took the acknowledgment of the deed in controversy ¡because he acknowledged all their papers. She supposed that is the only reason she knew it. Witness was sure she put the deed in the box in the trunk because that was where she kept all the deeds. • Witness thought her husband got the deed out of the box to have the abstract made in 1916 or 1917-—in December, 1916, the best witness could remember. The deeds at that time had not been recorded. T. I. Thornton made the abstract. Her husband had the abstract in his possession something like a year before he died. Witness and her husband looked over the abstract, and they talked about it. They didn’t know that the land in controversy was not included in the abstract, and didn’t know, when her husband died, that the deed was lost. Witness didn’t know that the abstract did not show the deed in controversy until she was told by her attorney. Witness further stated that she couldn’t say whether the deed was a lifetime deed or any other kind of a deed, and also stated that, if the deed was lost, it was the only deed conveying land to her husband that had been lost. Other deeds conveying lands to her husband were found after her husband’s death up in Rumph & Tyson’s safe, merchants with whom her husband did business. Before leaving these deeds with Rumph & Tyson for safekeeping, they were placed on record. Witness didn’t know the date they were recorded. Witness’ mother died in January, 1913, and her husband died in 1918. Witness was fifty-three years old at the time she testified. During her husband’s life witness never paid any attention to laud numbers or anything of the sort, and such knowledge as she had she had obtained since his death, and since the discovery of oil in the locality of these lands. Before her husband’s death witness only knew that part of the land was in section 21 and part in section 28. She didn’t know what land her husband owned. In regard to the search for the alleged lost deed, Rumph & Tyson told witness that all of her papers were in one envelope, and they gave that envelope to witness. Rumph knew that the deed was lost, but witness, after discovering that same was lost, did not go back and ask for a further search for it to see if it could be found in their safe.

In addition to the above, and bearing on the issue as to whether or not the appellants are barred by laches from maintaining this action, Mrs. Hughes testified that during the time she lived on the tract adjoining the land in controversy none of the Short family or the Langston family ever came there and made claim to the lands. In 1882 and 1883, or 1883 and 1884, Mrs. Langston lived on one of the north forties two years, and after leaving there she came back and visited witness’ mother at witness’ house in 1908, at which time she asked witness’ husband, in the presence of witness, who owned the land in controversy, and witness’ husband told her that he owned it. That he bought it from witness’ mother, but that, if any of the other heirs wanted the land, if they would pay him the expenses he had been put to, they could have it. Mrs. Langston replied that she didn’t want it, and wouldn’t pay the taxes on it for it.

C. E. Cramer testified that in 1905 he bought from J. W. Hughes and wife four acres of land in the SE14 of the SE14 of section 21-15-16. He had taken possession of it a short time before the deed was made under agreement with J. W. Hugiies. He built a house on it and cleared up the land and inclosed it with a fence after he obtained his deed. He is still in possession of the land. Witness had known the land ever since he could remember, and he was then forty-three years old. It was known as Mrs. Mattie Cramer’s place for a good many years before Hug’hes succeeded her in the possession of it. Mrs. Mattie Cramer was Mrs. Hughes’ mother. That was the way it had always been understood by the witness and the people there. Some five or six years prior to the time witness bought the four acres, J. W. Hughes claimed to own the forty, and had a part of it inclosed, possibly two or three acres where the old house place was. He cultivated it one year. The fence burned away, and he did not fence it any more. This was about the year 1900. Hughes claimed to be in possession of the forty, and used it as his own. He sold timber from it to the ■mill companies and to people who worked it. Usually Hughes made ties himself and sold the ties. The entire forty acres was never inclosed at any time, and none of it was cultivated except the small place that Hughes inclosed where the old Johnson home was situated. Hughes never moved and lived on the forty. The fence around the inclosed tract had been placed there by Mrs. Mattie Cramer or her sons, and these had made crops there before Hughes’ purchase. George Cramer cultivated the small tract of land ten or twelve years before witness bought the four acres from Hughes.

Robert Harding testified that he had lived within three-quarters of a mile of the land in controversy for twenty or twenty-five years. He was asked who had been in possession of it, if anybody, and if so, how long, and who had claimed to own it during that time. He answered that the Cramer estate and J. W. Hughes had been in possession of it ever since he had known the place. Mrs. Mattie Cramer was in possession of it until Hughes took possession. Witness knew nothing about the title to the land. This was prior to the time C. E. Cramer purchased the four acres from Hughes. So far as witness knew, no part of the forty acres was ever-inclosed except the C. E. Cramer four acres in the northeast corner. J. W. Hughes married Mrs. Mattie Cramer’s daughter. Witness didn’t know by what title they claimed, but they claimed it. The forty on which Council Cramer obtained the four acres was all claimed by the Cramer estate, and they had it in their possession. Witness understood that J. W. Hughes owned it and had possession of it.

George Cramer testified that he was the son of James H. Cramer and the brother of Mrs. Janet Hughes. The heirs, all except Mrs. Hughes, deeded their interests to J. W. Hughes and Mrs. Hughes. The witness was a party to the suit, and was claiming an interest in the land in controversy if the court so decided.

A. M. Sutton testified that he bought leases, including the lands in controversy, in the fall of 1922, from Mrs. Hughes and her children. The land at that time was wildcat territory. At the time of its purchase there were five producing wells within five miles of it. He paid $5,000 for the leases, and agreed to drill a well on the property within thirty days from the completion of the title. At the time witness purchased the property such acreage usually sold from a dollar an acre on up. A dollar an acre is considered a fair price. Witness liked this acreage, however, and paid the sum of $12.50 an acre. After the first producing well came in, the market value of the land per acre was from a thousand to three thousand dollars. Witness refused $1,500 an acre for the land in controversy. The land with the developments now on the property would be worth $110,000.

W. D. Langston testified, among other things, that in 1886 he turned over to Mrs. Martha Cramer the rent for the purpose of paying the taxes .on the property. He stated that three mules were sold, and the proceeds turned over to J. H. Hughes to keep up the taxes on the property; that in 1902 witness sent $50 to Mrs. Cramer to pay taxes. Witness didn’t know until 1923 that Mrs. Cramer was selling the land that belonged to the Johnson estate, when he wrote the sheriff about the taxes in January, 1923, and this suit was instituted in March, 1923. The sheriff wrote the witness to come over and attend to it, and he found that most of the land had been sold. Witness’ mother, one of the heirs to the Johnson estate, told witness that three mules had been sold to keep up the taxes on the place. Witness’ mother came back to visit Mrs. Cramer in 1910, and always claimed to own an interest in the land, and, since her death, witness claimed her interest in the land by descent.

C. F. Mullins testified that he sold land of the same character of the land in controversy for $1 an acre.

D. W. Short testified that his mother died in 1882, in Texas. She was one of the heirs to the Johnson estate. Witness’ father had let Jim Cramer have a pair of mules, and it was understood that he was to pay the taxes on the land until the same was exhausted, and then to notify the witness and his mother. Witness always felt that he had forty acres of the land.

It was shown that the taxes on the lands in controversy were paid for 1887 and 1888 by D. W. Short; in 1889 by J. W. Brown; from 1890 to 1895, inclusive, by Martha Cramer; from 1900 to 1902 by H. L. and Leo Barg; from 1903 to 1919 by J. W. Hughes, except on four acres thereof which was paid by C. E. Cramer. The taxes were assessed in Hughes’ name in 1921, and were paid by J. E. Hughes. J. W. Hughes paid the taxes in 1922, and they were assessed in his name in 1923, and marked unpaid.

In addition to the above, the pleadings and testimony disclosed the following facts: When the cause of action was begun, it involved title to 280 acres of land in Ouachita County, including the lands in controversy. All parties claimed title from a common source, to-wit: William Gr. J ohnson, except the SE% of section 21, in which the lands now in controversy are situated. As to the SE14 of section 21, the appellants claimed title from Sherman Wakefield, the patentee of the government, who conveyed to William Gk J ohnson. The appellees deraigned title by mesne conveyances from Wakefield, the patentee of the government, to Mrs. Lavinia Johnson, and from Mrs. Lavinia Johnson to Martha J. Cramer and J. W. Hughes. The appellees set up that the mesne conveyances from Wakefield had been lost. William Gr. Johnson died in 1862. Lavinia J ohnson was his mother, who died in 1873. William Gr. Johnson died unmarried and without issue, and whatever interest he had in the land in controversy passed, under the laws of descent and distribution, to his sisters, Mary Langston, Caroline Short and Martha Cramer. Mrs. Caroline Short died in 1882. Mrs. Mattie Cramer died about the year 1913. Caroline Short and Mary Langston were residents of Ouachita County, and were cognizant of the death of William G. Johnson and Lavinia Johnson. After the death of William G. Johnson in 1862, Caroline Short and her husband moved to Texas, taking with them Mrs. Lavinia Johnson, who died at their home in 1877. After Caroline Short died, in 1881 or 1882, her son, George Short, returned to Arkansas with his aunt, Mary C. Langston, and moved on the north half of the southeast quarter of section 21. George Short died in 1883 or 1884. After his death Mary C. Langston and W. D. Langston moved to Louisiana and afterwards to Texas, where Mrs. Langston died in 1914. The taxes were paid by the husband of Caroline Short until the year 1888. From then on they were paid by Mrs. Martha Cramer to 1903, and since that time, as we have stated, by J. W. Hughes and those claiming under him. Mrs. Martha J. Cramer resided upon lands near the tract in controversy until her death in 1913.

After hearing the testimony the court found that it was insufficient to establish the existence and execution of a deed from Mrs. Mattie Cramer to J. W. Hughes conveying the lands in controversy. But the court found in favor of Mrs. Hughes and others, appellees, as against appellants, the other parties to the action, and dismissed their alleged cause of action for want of equity, from which decree is this appeal.

1. The chancery court found that the testimony of Mrs. Janet Hughes was not sufficient to establish the lost deed under which the appellee claims title to the land in controversy. • We cannot say that this finding is clearly against a preponderance of the evidence. It is true, Mrs. Hughes testified quite positively that her mother did convey to her husband, J. W. Hughes, the particular land in controversy, but, when her testimony is taken as a whole, as it must be, it does not fulfill the requirements of the law as to the proof necessary to establish the execution, contents, and loss of a deed to land.

In Erwin v. Kerrin, 169 Ark. 183, we said: “The rule is well established in this State, as well as by the authorities generally, that the burden is upon one who claims title under the alleged lost instrument to establish the execution, contents, and loss of such instrument by the clearest, most conclusive, and satisfactory proof.” See cases there cited, and also Queen v. Queen, 116 Ark. 370; Wilson v. Walker, 158 Ark. 4.

Learned counsel for the appellees, to sustain their contention that the finding of the chancellor on this issue was contrary to the preponderance of the evidence and erroneous, cite cases in which we stated that, in determining the issue as to whether or not a deed had been made or lost, it was proper for the jury to take into consideration oral evidence that such deed was made, and, in connection with such oral evidence, who claimed to be the owner of the land, how long such claim had been set up, whether the land was held adversely to such claim, if wild and uncultivated, who paid the taxes on said land, and whether or not said land had been recognized and known as the land of the party who claimed title to it by virtue of the lost deed, and all the surrounding circumstances. The attorneys argue that, if such evidence should be sufficient to support the verdict of a jury establishing the execution of a lost deed, then such testimony should likewise be sufficient to convince the mind of a chancellor. See Steward v. Scott, 57 Ark. 153; Carpenter v. Jones, 76 Ark. 163. And, if this court would not set aside the verdict of a' jury that a deed had been lost bottomed upon such evidence, then we should reverse a contrary finding of the chancellor based upon such evidence. Non sequitur.

The argument is unsound for the reason that the jury are the sole judges of the evidence and the credibility of witnesses, and in determining issues of fact the verdict of the jury will be sustained by this court where there is legally sufficient evidence to sustain it. But a chancery court, on issues of fact, might reach an entirely different conclusion from what a jury would reach on the same evidence. On appeal from its finding this court tries the issues de novo, and only when in doubt as to the finding that should 'be made do we treat the findings of the chancellor as persuasive, and adopt the same as our own; and we reverse the findings of the chancellor only when we are convinced that they are clearly against a preponderance of the evidence. Smith v. Leach, 130 Ark. 165, and cases there cited. As already stated, an entirely different rule prevails here as to the verdict of a jury, which is treated as conclusive on issues of fact, where there is any legally sufficient evidence to sustain it. The testimony of Mrs. Janet Hughes, and the testimony aliunde, which counsel for the appellees contend is in corroboration of her testimony on the issué of the lost deed, when all of it is considered together, does not measure up to the standard of proof exacted by the law for the establishment of the existence, contents, and loss of instruments that are muniments of title to land. It could serve no useful purpose to discuss the testimony of Mrs. Hughes and the other testimony upon which counsel for appellees rely to sustain their contention on this issue. Mrs. Hughes’ testimony is set out above, and it certainly cannot be characterized as clear, decisive and satisfactory. On the contrary, it is obscure, vague and indefinite. The chancery court was therefore correct in holding that the lost deed, under which the appellees claim, was not established.

2. But we are convinced that the chancellor was likewise correct in holding that the appellants are estopped by their laches from maintaining this action. Counsel for appellants contend that they are only asserting a purely legal title to the lands in controversy, and that, as against such title, the plea of laches cannot avail the appellees. But, in making this contention, learned counsel for the appellants seem to have overlooked their own pleadings. While it is true that in his original complaint the appellant Langston alleged that he was the owner of a oneJhird interest in the- lands as the only heir of Mary C. Langston, and that the Short heirs were the owners of a one-third interest as the heirs of Caroline Short, and that the heirs of Martha J. Cramer were the owners of the other third interest, nevertheless they voluntarily entered the forum of chancery and asked affirmative relief, which only a court of equity could grant. Among other things he alleged in substance that the appellees were estopped from claiming any part of the lands in controversy, for the reason that their ancestor, Martha J. Cramer, had appropriated from the estate of William G-. Johnson more than her share of that estate. And the heirs of 'Caroline Short, also appellants, adopted the contention of Langston in their cross-appeal, and prayed that the appellees be estopped from claiming any interest in the land in controversy, and that their title to an undivided one-half interest in said tract be quieted. Moreover, the appellants sought by their pleadings to have canceled certain oil and gas leases and mineral deeds executed by the appellees. Coming into a court of equity and seeking affirmative equitable relief against the appellees, the appellants are in no attitude to contend that the appellees are precluded from pleading and proving that the appellants are barred by their laches from maintaining the action and obtaining the relief prayed 'by them. While laches cannot operate to invest a title in the appellees, nevertheless the laches of the appellants, if proved, is a perfect defense to their action and estops them from maintaining the same.

Likewise we deem it unnecessary to reiterate and argue at length the facts which we conclude constitute laches on the part of the appellants. The facts speak for themselves. Counsel for appellants argue, in the first place, that there was no delay, and, in the second place, that, even if appellants.delayed to assert their rights, such delay worked no disadvantage to the appellees. We cannot adopt this view of the evidence. Without restating the facts, they show that the appellants had knowledge that Martha J. Cramer and those claiming under her were asserting rights to the land in controversy wholly inconsistent with any rights of the appellants as tenants in common with Martha J. Cramer. The findings of the trial court are general, ¡but it might well have found, and doubtless did find, that for a period of at least thirty-five years, from 1888 to 1923, the taxes on the lands were paid by Mrs. Cramer and J. W. Hughes, under whom the appellees claim title. Certainly the testimony of C. E. Cramer, Hardin and Mrs. Hughes as to the possession and claim of ownership of the lands by Mrs. Cramer and J. iW. Hughes was sufficient to justify the court in finding that, even before 1905, Mrs. Mattie Cramer was claiming to own the lands as her very own, and not as a tenant in common with appellants, and as early as 1905 J. W. Hughes was claiming to own the land. The testimony of C. E. Cramer is very clear to the effect that, before he acquired the laud from Hughes in 1905 and as early as 1900, Hughes had fenced and cultivated a portion of the land. He had sold timber, and had made and sold ties from timber on the land, and in 1905 continued to exercise at least a claim of ownership by conveying four acres of it to Cramer. The conduct of Mrs. Cramer and Hughes with reference to the land, according to these witnesses, was such as to impress everybody in that vicinity that first Mrs. Cramer, and then Hughes, owned the land from 1900 on. If the appellants were not so impressed, it was because they shut their eyes to the situation, and had abandoned all interest that they claimed to have in the same. When the facts are analyzed, it will be seen that the chancellor was justified in finding that there was more in them than simply the lapse of time, the payment of taxes by the appellees, and the enhancement of value, to estop the appellants from maintaining’ their action.

Without further arguing the-facts, it suffices to say our conclusion is that the case comes well with the doctrine of laches as announced by us in many cases. Turner v. Burk, 81 Ark. 352; and Underwood v. Dugan, 139 U. S. 380, therein cited, and the recent case of Avera v. Banks, 168 Ark. 718. Even if it could be said, as contended by the appellants, that Mrs. , Martha J.' Cramer secured possession of the land by permission .of the appellants, and that during the period of her occupancy she was a tenant in common with the appellants, and occupied a relation of trust and confidence to them, which would make the taxes paid by her inure to appellants’ benefit, nevertheless the undisputed testimony shows that Hughes was claiming the land in 1905, and Mrs. Langston knew this as early as 1908, for Hughes told her that he owned it, and that he bought it from Mrs. Cramer, and informed Mrs. Langston that if they would reimburse him for his taxes and expenses they could have the land, and she replied that she didn’t want it and wouldn’t pay the taxes on it for it. From that time on until the institution of this action in 1923; a period of fifteen years, the appellants had’knowledge that J. H. Hughes was claiming to own the land, and that the taxes thereon were being paid by him, yet they made no gesture towards challenging his claim of ownership or towards assuming the burden of taxes until the lands had tremendously enhanced in value by the discovery of oil thereon, and until oil and gas leases and assignments thereof to various parties had taken place. After the appellants have allowed these conditions to obtain, it is a great mistake to assume that the delay of appellants (if they obtain the relief they seek) has not worked to the disadvantage of the appellees.

The cases of Casey v. Trout, 114 Ark. 359, and Jones v. Temple, 126 Ark. 86, upon which counsel rely to sustain this contention, have no application because of the difference in the facts of those cases from the case at bar. The facts of this case bring it within the doctrine of laches announced by us in Osceola Land Co. v. Henderson, 81 Ark. 432, 439, where, speaking through Mr. Justice Riddick, we said: “Laches in legal significance is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a-right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has in good faith become so changed that he can not be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as estoppel against the assertion of the right. This disadvantage may come from loss of evidence, change of title, intervention of equities and other causes; for, where the court sees negligence on one side and injury therefrom on the other, it is a ground for denial and relief.”

It follows that the decree of the trial court dismissing the appellants’ complaint for want of equity is correct, and the same is therefore affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Fort Smith Light & Traction Company v. Cooper.
    Opinion delivered January 25, 1926.
    Master and servant—negligence—sufficiency of evidence.— Where an injury might have been caused in either of two ways, for one of which the master would ibe liable, but not for the other, and the testimony does not preponderate that the injury was caused in the way for which the master would be liable, there can be no recovery, 'because liability in such case cannot be predicated upon speculation or conjecture.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      Hill & Fitshugh, for appellant.

      Dave Partain and G. L. Grant, for appellee.
   Smith, J.

On August 25, 1922, C. L. Cooper and H. K. Deason and Lee Singer, all employees of the Fort Smith Light & Traction Company, hereinafter referred to as the company, were directed by the superintendent of the company to put in eight switches on .a certain pole in the city of Fort Smith. Cooper was a line foreman and was in charge of the other two men, but at the time of his injury herein sued for was performing a duty usually performed by linemen.

The pole was about forty or forty-five feet high, and had six cross-arms fastened to it, and was about fifty to seventy-five feet from the company’s powerhouse where the electricity was generated.- There were iron braces connecting the arms at their ends, and braces ran from the ends of the lowest of these arms to the pole, one brace being placed over the other at the point where both were fastened to the pole. There was an insulator on each of these arms where the wire was stretched across it, the purpose of the insulator being to hold the wires in place and to keep them off the arms. The insulators were all in good order, and all the wires were properly in place. The top arm carried what was called the 13,000-volt wires. The second and third arms from the top of the pole carried what was called 2,300-volt wires, and it was on the third arm from the top that the switches were to be placed. It was five feet from the pole to the end of the arms.

The insulators on one pole were 24 inches higher than those on the poles below, and, as there were six of these arms, the insulators on the top arm were 10 feet higher than those on the lowest arm, and this is true of the wires ■as well as the insulators, as the wires were fastened to the insulators. The wires on one side of the pole were positive while those on the other side were negative.

Cooper first climbed the pole, and was followed by Deason, and, when they reached the place where the switches were to be installed, they were standing on opposite side of the pole and on the second arm from the bottom. Cooper received a severe shock, which caused him to fall to the ground, and when he fell his chest was caved in, and after suffering great agony for nearly an hour, during a portion of which time, at least, he was conscious, he died. The physician who attended deceased described his injuries as follows: “He was burned on the outside of his right arm between the elbow and shoulder. .He was suffering from an injury to the chest, the ribs and perhaps the breast bone had been broken, and either one or the other had perforated the lung. It took about thirty minutes for him to suffocate himself. The chest and neck were ballooned out with air. He suffocated himself, taking about thirty minutes to do it in.”

This suit was brought by Cooper’s widow as administratrix to recover damages, and from a judgment for $30,000 in her favor is this appeal.

The case was tried on the second amended complaint filed in the case, which alleged negligence in four particulars in paragraphs numbered A, B, C and D. Paragraph A was stricken from the complaint.

Counts B, C and D alleged negligence as follows :

“(B). That there was an insulated ground wire upon the pole extending from near the top of the pole down to and into the ground; that the covering or insulation on the wire was worn lat the point where it crossed the braces on the pole below the cross-arms; that the ground wire which ran up the pole had been installed to conduct any electrical discharge into the ground, but its use for that purpose had been discontinued, yet, on account of the damaged condition of the insulation, the electricity connected up with the iron bars or braces and, coming in contact with the ground wire, formed a circuit, which resulted in Cooper being shocked when he touched one of the braces in the discharge of his employment.
“(C). That the wires upon said pole and cross-arms had become worn and the insulation had decayed and damaged so that the electricity could and did escape from the wires, and, so escaping, came in contact with Cooper and caused his injury and death.
“(D). That the company negligently failed to exercise ordinary care to furnish Cooper a reasonably safe place in which to work by failing to keep its wires covered and insulated so that the current of electricity carried on the wires could not come in contact with the employees who were required to work among them, and in. negligently failing to have its wires so covered and protected that they would not come in contact with each other and with the metal bars holding and connecting the cross-arms on the poles.”

It is not claimed that deceased came in contact with the 13,000-volt wires, bnt it is claimed that electricity may have escaped from them and have gotten on to the metal braces which, connecting with the ground wire, formed a circuit, and that deceased was shocked by coming in contact with one of the braces. This theory of the case may be disposed of by saying that the undisputed testimony shows that the 13,000-volt wires were held securely in place by the insulators to which they were attached and that the insulators were in good condition, and were six inches from the braces, and all the testimony shows that the current would not arc or leap over this distance.

As we understand the theory of the plaintiff’s case, it is essential that the testimony be found to be legally sufficient to support a finding, not only that the braces had become charged with the current, but also that the braces were in contact with the ground wire fastened on to the pole and extending into the ground, thus forming a circuit. As tending to show that the ground wire had been charged with electricity, testimony was offered that, at a point on this wire and near the place where the braces were fastened to the pole, the wire presented the appearance of having been burned. This was explained by testimony showing that it could have been caused by carrying to the ground a flash of lightning, the wire having been placed on the pole for that purpose.

The testimony on behalf of the plaintiff locates this ground wire within an inch of the brace fastened to the ■pole. The testimony on behalf of the company was that the distance was an inch and a half. We accept as true the testimony most favorable to the plaintiff and assume the distance to be only an inch. But the testimony of the expert electrician who testified on behalf of the company was to the effect that electricity will arc, that is, pass from one wire to another, one inch for each 10,000 volts, and that 2,300 volts could not establish an arc at that distance. This statement was not challenged ¡by the electricians who were present and testified on behalf of the plaintiff. We are cited to a statement contained in Foster’s Electrical Engineer’s Pocket Book, which is said to be a standard authority with electrical engineers, in which it is stated that a voltage of 20,000 is required to arc a current a distance of an inch. But the undisputed testimony shows that, of the 13,000-volt wires, the nearest wire which carried that current at any time was six inches from the braces and was securely in place on the insulators to which they were .attached.

There was a current on the 2,300-volt wires which were attached to the second and third arms from the top, but these wires were also securely in place on the insulators to which they were fastened, and no one of these wires was nearer than six inches to the iron braces.

The wires on the second and third arms from the bottom were dead wires at the time deceased ivas burned. The current was on the wires strung on the first arm from the bottom, but these wires carried only 500 voltage, and the nearest of these to the braces was six inches.

It appears to us therefore that, unless the jury was warranted in finding from the testimony that the braces fastened to the pole came in contact with the ground wire, also fastened to the pole and placed there only to throw off flashes of lightning, an essential link in the plaintiff’s case is missing, for only in this way could the jury find that deceased would have come into contact with the electrical current at a place where he had the right to expect it to be absent.

The testimony shows that the insulation on the wires was worn, one witness saying that it was only 65 per cent, of good condition, but this testimony, of itself, could not support a recovery, because the undisputed testimony shows that no insulation in use protects from a voltage greater than 550, and' the arm on which the .switches were to be place carried a voltage of 2,300, and it was not alleged the deceased was unaware of that fact.

The company insists that there conld be no recovery for deceased’s death because the shock which caused him to release his hold and fall to the ground would not have seriously injured him had he used a safety belt provided him and which would have prevented the fall, and, further, that he would not have been shocked had he used a rubber covering for the wires called pigs, or one called a blanket, which would have afforded a protection which the ordinary insulation on the wires was not intended to give. But, inasmuch as we have reached the conclusion that no negligence on the part of the company is shown, we do. not consider these defenses.

The superintendent of the company, who was shown to have a thorough knowledge of the working of the system and of the relation of the wires, was asked how, from his 'knowledge of the situation, deceased, standing on the second cross-arm, could have received a shock. He answered that it was hard to determine, but that he might have gotten between the wires, and he also stated that, if deceased came in contact with the two wires, he would have been shocked, and that no insulation on the wires could have, prevented the shock, for the wires carried ' a voltage of 2,300.

It is not contended that plaintiff would have the right to recover if deceased received the shock which caused him to fall by coming in contact with two of the wires at the same time. The insistence is that he received the shock from the braces from which he hlad no reason to expect a peril of that kind. As we have said, we do not think the testimony sustains this contention. Another and much more probable theory is that deceased was shocked by coming in contact with two of the wires at the same time, thus making a short circuit out of his body, and if this is true—and the testimony certainly did not exclude that theory—the company is not liable.

It is a well-settled principle that, where an injury might have been caused in either of two ways, for one of which the master would be liable, but not for the other, and the testimony does not preponderate that the injury was caused in the way for which the master would he liable, there can be no recovery, because liability in such cases cannot be predicated upon speculation or conjecture. The jury must be able to find from the preponderance of the evidence that the injury was occasioned by some act of negligence on the part of the master, and this showing is not made when it is as probable under the evidence that the injury occurred in one way as it is that it occurred the othej\ On this question the case of Denton v. Mammoth Spring Electric Light & Power Co., 105 Ark. 161, is directly in point.

We think the testimony does not sustain the allegations of negligence on which a recovery is asked, and that it is a mere matter of conjecture how he was shocked, and the company can not be held liable unless the affirmative showing is made that the injury was occasioned by some act of negligence on the company’s part. As was said in the case cited, ‘ ‘ the cause of the accident is purely a matter of conjecture, and ‘a servant cannot recover where it is merely a matter of conjecture, surmise, speculation or supposition, whether the injury was or was not due to the negligence of the master.’ 2 Labatt on Master & 'Servant, 167.

Here the testimony is undisputed that deceased was an experienced lineman, was, in fact, a foreman, and had been in this service for a number of years, and there is no contention that he was not fully aware of the danger of coming into contact with two of the wires at the stale time.

It follows, from what we have said, that a case of liability was not made, and, as the case appears to have been fully developed, the judgment of the court below will be reversed, and the cause will be dismissed.


author: McCulloch, C. J.

text:
    Farmers’ & Merchants’ Bank v. Ray.
    Opinion delivered February 1, 1926.
    Banks and banking—liability for negligence in collecting check.—Under Acts 1921, p. 514, § 14, providing that a bank receiving for collection a check or draft payable in another city or town, and having exercised reasonable care to select a proper correspondent, shall not he liable for the default or negligence of such correspondent, held that it was error to instruct that a bank receiving a check for collection “is responsible for the conduct of all other banks employed by it in collecting the check.”
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      James B. McDonough and Starbird $ Starbird, for appellant.

      Warner, Hardin & Warner, for appellee.
   McCulloch, C. J.

Appellee, who was the plaintiff below, is a resident of Mulberry, Arkansas, and appellant is engaged in the banking business at that place.

This is an action instituted by appellee against appellant to recover the amount of a check received for collection by appellant, which it failed to account for. The case was tried before a jury, and the trial resulted in a verdict in favor of appellee.

On June 19, 1923, during banking hours, appellee delivered to appellant, for collection, a check for $1,150, drawn in his favor by Mrs. Etta B. Beard on the First National Bank of Sapulpa, Oklahoma. Appellant accepted the check, passed it to the credit' of appellee, and gave a deposit slip, and forwarded the check to its corresponding bank in Fort Smith. This was done in due course of mail on the same day that the check was received, and, according to the due course of mails, the check should have been received by the bank in Fort Smith the next morning, June 20. The Fort Smith bank forwarded the check to the Federal Reserve Bank at Oklahoma City, where it was received on June 22, 1923, and was by that bank forwarded directly to the First National Bank of Sapulpa for payment. The check was received by the Sapulpa bank on June 23, and on that day it drew its own draft on the Federal Reserve Bank at .Oklahoma City and forwarded it to the latter in payment of appellee’s check. This draft probably reached Oklahoma Óity on June 24, which was Sunday, but was not delivered on that day, being delivered in due coiirse on Monday, June 25. Oh that day, and before the Federal Reserve Bank could forward the check, the First National Bank was found to be insolvent, and passed into the hands of the Bank Commissioner for liquidation.

The drawer of the check, Mrs. Beard, lived at Sapulpa, and, when the bank there received the check for payment, Mrs. Beard was informed that the check overdrew her account, whereupon she made a deposit of $500, which was more than sufficient to raise the credits on her account above the amount of the check. Thereupon the bank marked the check “Paid,” and surrendered it to Mrs. Beard.

On June 26 appellant received information of the failure of the Sapulpa bank, through its Fort Smith corresponding bank, and at once notified appellee. This was done by the assistant cashier of appellant bank. He testified that he notified appellee that the First National Bank of Sapulpa had closed its doors, that the check was not good, and that they would have to charge it back to him. He testified that he told appellee that they would wait a few days to see whether the check came back. On July 23 the item was charged back against appellee on his account, but he was not notified of the entry until about a month later. In the meantime, appellant, through its cashier, requested appellee to sign a preferred claim tó be filed with the Oklahoma Bank Commissioner, but appellee refused to do so. He testified that his refusal was for the reason that appellant demanded that he accept what he received on the claim in full of all demands against the appellant bank.

There was testimony as to the course of the mails between Mulberry and Sapulpa via Fort Smith and Oklalioma City. A letter mailed at Mulberry would reach Fort Smith the next morning, and a letter mailed at Fort Smith during the day would leave there early in the evening and reach Oklahoma early the next morning. It was four or five hours by train from Oklahoma City to Sapulpa, there being four trains a day each way. There was no testimony from any one in the Fort Smith bank as to the time the check was received there and mailed out.

The trial court instructed the jury that appellant was liable for its own negligence as well as that of any - of the banks through whose hands the check passed for collection, and submitted the issue to the .jury as to whether or not there was a failure in collecting the check on account of negligence. Appellant asked the court to instruct the jury that all of the corresponding banks through which the check was transmitted for collection were the agents of appellee, that defendant was liable only for negligence of its own, and was not liable “for the default or negligence of any of the corresponding banks.” The court refused to give that instruction, and this is the principal assignment of error in the case.

It is undisputed that the check was delivered to appellant merely for collection, and hence it becomes necessary to determine whether or not the court was correct, in its instruction that appellant was liable for any negligence of the corresponding banks through which the check passed.

There are two conflicting lines of decisions—one originating in the New York Court of Appeals (Allen v. Merchants’ Bank, 22 Wend. N. Y. 215), in which it was held that the initial collecting bank is responsible for the negligence of all the corresponding banks through whose hands the check may pass for collection, unless there is an express contract to the contrary between the' customer and the initial bank; and the other rule originating in the Supreme Judicial Court of Massachusetts (Fabens v. Mercantile Bank, 23 Pick. (Mass.) 330), to the effect that where a check on a bank at a distant point is delivered to the initial hank for collection, the corresponding hanks are the agents of the customer, and the initial hank is not responsible for their negligence. 3 R. C. L. p. 622; Morse on Banks, § 274 et seq. The Massachusetts rule seems to find rather greater support in the other authorities, but this court has already committed itself to the New York rule, and we are not disposed to change by overruling former cases. Second National Bank v. Bank of Alma, 99 Ark. 386; Perry State Bank v. Myers, 159 Ark. 253. In Perry State Bank v. Myers, supra, we said: ‘ ‘ The law requires a bank to use due diligence in collecting checks deposited with it for collection. What due diligence is depends on the particular circumstances in each case. * * * The negligence of the corresponding bank was necessarily the negligence of the sending bank. It had selected the corresponding bank as its agent for the collection of the check.” In Second National Bank v. Bank of Alma, supra, we said: “A bank which accepted a draft for collection is liable to the owner thereof for any loss sustained by reason of any default or breach of duty by a subagent to whom it forwarded the draft for collection.” Counsel for appellant distinguish this case from Perry State Bank v. Myers, supra, by saying that in that case the draft was on another bank in the same county with the initial bank, and that, if the latter saw fit to send it to a corresponding bank outside of the county, instead of presenting the check directly, it did so at its own risk. That, we think, was not an important distinction, for the fact that the two banks are situated in the same county does not change the operation of the rule. If the banks were in the same town where there could be a direct and personal presentation of the check, then there would be a distinction, because, necessarily, the sending of the check to a corresponding bank would be an unnecessary act, and any risk attending it would be assumed by the initial bank. Where there are two banks in different towns of the same county, the matter of distance is merely one of degree, and, even though the hank is adopting ordinary hanking methods in forwarding the check to a correspondent instead of presenting it directly to the paying hank, the selection of the ¡agencies are those of the initial bank, and not of the customer, and the latter is liable for all negligence unless there is a special contract against liability for negligence of the corresponding banks.

But the rule of law thus announced by this court has been expressly changed by a statute which reads as follows :

“Any bank, whether within or withóut this State, receiving for collection, or for deposit and recharge if not collected or remitted for, any check, note, bill, draft, certificate or other instrument or account, payable in another city or town, whether within or without this State, having exercised reasonable care to select a proper correspondent for the collection of such instrument or account, shall not be liable for the default of such correspondent or of any subcorrespondent selected by the latter, and negligence of any forwarding bank shall not be predicated upon the fact that it may have forwarded such instrument or account directly to the bank on which it is drawn or at or by which it is payable, but the owner of such instrument or account, or the person to whom the same is recharged if not collected or remitted for, shall have a cause of action for and on account of said default against any such correspondent orjsubcorrespondent itself failing to exercise reasonable bare in making said collection.” Acts 1921, p. 514, § 14.

The rulings of the court in regard to instructions to the jury were in direct conflict with this statute. It is true that appellant’s requested instructions were not in the exact language of the statute, but they came substantially within its terms, and one of the instructions given over appellant’s objection told the jury, in so many words, that appellant “is responsible for the conduct of all the other banks employed by it in collecting the check. ’ ’ The evidence in the case was sufficient to warrant the jury in finding that appellant was not guilty of any negligence in the selection of its correspondents, and that it was not negligent itself in forwarding the check for collection, hence the instructions of the court were erroneous and prejudicial.

It is unnecessary to discuss any other feature of the case, for the error of the court in its charge to the jury calls for a reversal.

Eeversed and remanded for a new trial.