author: Kirby, J.,

text:
    Fulton Ferry & Bridge Company v. Huckins.
    Opinion delivered March 21, 1927.
    Ferries — rates.—While ferries are established for the accommodation of the public rather than for the gain and advantage of persons operating them, the rates fixed by the county court must be reasonable.
    Ferries — RATES—jury QUESTION. — The reasonableness of ferry rates is a question solely for the courts.
    Ferries — reasonableness of rates. — Other courts cannot interfere with the rates or tolls of ferries fixed by the county court unless they are unreasonable.
    FERRIES — REASONABLENESS OF RATE® — PRESUMPTION.—The burden is on a party complaining of ferry rates fixed by the county court to show their unreasonableness, the presumption being that they are reasonable.
    Ferries — reasonableness of rates — value of property. — in fixing ferry rates, the.value of.the property devoted to public use should be considered and determined as of the time when the inquiry is made regarding the rates.
    Ferries — reasonableness of rates — losses and profits. — Past losses cannot be used to enhance the value of the property or to support a claim that rates for the future' are confiscatory, nor can past profits be used to sustain confiscatory rates for the future.
    Ferries — reasonableness of rates. — Consideration of the increased value of a ferry as a going concern since the organization of a corporation taking it over for capitalization at a certain figure held not warranted in fixing toll rates, where it was a going concern when incorporated, and no circumstances are shown establishing an increase of value.
    8. FERRIES — REASONABLENESS OF RATES — RENTAL VALUE. — It was not error, in determining the reasonableness of ferry rates, to exclude from consideration any additional rental value of the ferry franchise since the ferry was incorporated, in view of the official reports .of the corporation showing the cost of construction and reproduction.
    9. Ferries- — reasonableness of rates — cost of insurance.- — The cost of carrying liability insurance was properly excluded where no such insurance was being carried, and no occasion for carrying it was shown.
    10. Ferries — rates—amortization of plant. — In fixing toll rates, a ferry company should have been allowed a yearly amount sufficient to cover the amortization of the plant during the next three years, when it was shown that the ferry would be displaced by a bridge.
    11. Ferries — rates—expense of maintenance. — In fixing ferry rates, a reasonable amount for emergency work in reconditioning the shifting river bank after overflows for the landings should have been allowed as a necessary expense of operation, though no charge had thefietofore been made by the company’s president and ferry manager for such work by teams from his plantation.
    12. Ferries — rates—suspension of travel in overflows. — Suspension of travel because of- periodic overflows held not so probable as to warrant allowance for loss of tolls thereby.
    18. Ferry — fixing rates. — In fixing ferry rates it is immaterial that the ferry was paid for out of excessive profits from high toll rates in past years, as the law, in protecting the owner in the enjoyment of the property, does not consider the source of the purchase money, but only its use in rendering service.
    14. Ferries — rates—evidence.—Evidence held to establish that day ferry rates of 50 cents per automobile and per ton of trucks, instead of 35 cents fixed by the county court, and a night rate of 75 cents for automobiles and per ton of trucks, instead of 70 cents, would be reasonable.
    Appeal from Miller Circuit Court; James H. McCol-lum, Judge;
    reversed.
    STATEMENT BY THE COURT.
    This appeal comes from a judgment of the Miller Circuit Court affirming the judgment of the county court fixing rates of tolls or ferriage for the ferry operated across Red River at Fulton by tlie Fulton Ferry & Bridge Company.
    The ferry company made application to the Miller. County Court, in December, 1925, for license to continue operation of a public ferry at Fulton for tbe next year, from tbe expiration of its license on tbe 31st of December. Paul J. Hucldns et al. were permitted to intervene as taxpayer's and residents of Miller County, using tbe ferry and paying the tolls, and alleged that the tolls collected by tbe ferry company were unreasonable and exorbitant, and prayed tbe court to put into effect reasonable and fair rates of toll for ferries.
    The ferry company, on May 6,1926, wrote tbe county clerk, inclosing its check in payment for the license and fees, and a schedule of tolls or rates fixed by the county court for former years and rates fixed by tbe Hempstead County Court for tbe present year, stating: “While tbe rates allowed us $1 for crossing a two-horse team and wagon and same amount for crossing an automobile, we do not charge more than 75c for one-way passage and $1 for round trip. Making tbe rate $1, we are protected from people who load up their automobiles -and wagons with foot passengers to avoid paying ferriage. The schedule also gives us a night rate that would give us a. chance of coming out on. Will you please explain these matters to the court. Dated Mav 6. 1926.”
    This schedule, showed:
    Automobiles ..$1.00
    Trucks (per ton).’...$1.00
    The ferry company responded, denying that the tolls set forth in its schedule are unjust, exorbitant or excessive; alleged that they are reasonable, and necessary to allow a reasonable rate on the investment, and similar to those charged by ferries in the State of Arkansas, especially in Miller County, where anything like similar services to those offered by respondent are maintained, and, because of the character of the river banks, the ferry landing and approaches are nnstable and have to be changed from time to time during high waters, causing large expenditures in keeping and maintaining such •approaches in a safe condition for operation of the ferry.
    The court, on July 12, fixed the license fee, and continued the matter of making rates and fixing schedule of tolls, and, on August 16, found the rates suggested in the schedule of the ferry company excessive and unreasonable, and fixed a schedule of rates for ferriage over Red River for Miller County as follows:
    Sheep and goats.$0.05
    Hogs .08
    Loose cattle.12
    Horses and mules...10
    Persons on foot.10
    Man and horse.15
    Single buggy and horse.25
    2-horse team and wagon....... 35
    4-horse team and wagon.60
    6-horse team and wagon. 1.00
    8-horse team and wagon. 1.25
    Automobiles..35
    Trucks '(per ton).50
    “The night rate, shall be double the rates above set forth, which are to be collected during the day. ’ ’
    The ferry company appealed from this order, and petitioned the circuit court to suspend the rates fixed by the county court; alleged that they were unreasonable and confiscatory, and prayed 'that they be permitted to charge, pending the appeal, the same rates as were allowed to be charged for travel from the Hempstead County side of the ferry, showing a schedule the same as that inclosed to the county court with the application for license, in which the rate for automobiles was $1 and trucks (per ton) $1.. The important and controlling rate or toll is the rate on automobiles.
    The testimony shows that, for more than forty years prior to June, 1922, the Fulton Ferry had been owned and operated by J. B. Straits of Fulton, or members of Ms family; that, at that time, he sold a one-half interest in the ferry to- the Conways for $15,000. An Arkansas corporation, the Fulton Ferry & Bridge Company, appellant, was organized June 1, 1922, and took over the ferry and its assets, issuing stock therefor to members of the Shults and Conway families in the sum of $30,000.
    Later, without additional capital being paid in, the capital of the company was increased from $30,000 to $150,000, and stock issued in that amount. No dividends were ever paid after the stock was increased, all profits being consumed in paying bonds and interest and salaries to the officials of the corporation.
    During the spring of 1926 George T-. Conway, who 'had previously sold for $7,500 a fourth interest in the ferry to Joe Chatfield, only delivering him $25,000 in stock therefor, bought it back for $5,000.
    In the spring or summer of 1923 George T. Conway and J. B. Shults secured from the county courts of Miller and Hempstead counties franchises to construct a toll bridge across Red River near Fulton, and in November J. B. Shults and George T. Conway, president and vice president of the Fulton Ferry & Bridge Company, sold these .franchises, which had been obtained from the county courts of said counties for nothing, to their bridge company for $100,000, themselves being two of the three directors of the corporation, and Brooks Shults, son of the president, J. B. Shults, being the third. No tolls or rates for ferriage had been fixed by the Miller County Court^ince the formation of the corporation, the schedule as last made by it, April 5, 1922, allowing $1 for automobiles and $1 for trucks (per ton), when Shults owned the ferry, as attached to the petition for the license, was the same as the schedule of rates fixed by the Hempstead County Court, and had been kept posted by the Ferry Company, which was charging 75c for carrying automobiles in the daytime and $1.50 for ferriage at night.

      The gross receipts of tire ferry for tire calendar year 1922, the year prior to the formation of the corporation, were $20,927.09. The appellant’s fiscal year ends May 31, and increase of traffic and income is reflected in the gross receipts for the fiscal years since its formation as follows:
    Year ending May 31,1923.$26,078.60
    Year ending May 31, 1924. 28,626.64
    Year ending May 31, 1925. 42,408.87
    Year ending May 31, 1926. 56,836.56
    For five months of the fiscal year that will end May 31, 1927, being the months of June to October, 1926j inclusive . 31,013.69
    While the income had increased about 300 per cent., rates in effect had not been changed until the present order of the county court. According to exhibits made from appellant’s books since its organization, income had been paid out in salaries, dividends, interest on bonds and bonds (those issued for the bridge franchises granted by the county courts as already stated), ¡attorney’s fees and expenses of the bridge litigation, to the amount of $122,904.25.
    The company kept no capital or depreciation account, but every item of improvement or addition to equipment was charged to the expense account, the same hs wages paid the employees of the corporation, and the plant, in cash and usable value, is now worth more than the value at the time it was taken oyer by the corporation.
    This ferry crosses Red River at Fulton on the main highway from St. Louis, north, and Memphis, east, through Little Rock and Texarkana, into Texas, United States Highway No. 67. The ferry at Garland, on the river below Fulton, is on the main highway from Texar-kana through the Arkansas oil fields to Pine Bluff. These two ferries have a monopoly of the traffic on these improved roads, and each has been charging 75c ferriage for automobiles. The rates of toll on other ferries on Red River below tbe Fulton Ferry, where no good roads have been built at public expense and the traffic is light, are, for crossing automobiles:
    Dooley’s Ferry.50c
    McClure’s Ferry.35c
    Nottingham’s Ferry..50c
    Blanton’s Ferry at Spring Bank. 25c
    The value of the corporation’s property is placed at $30,000 in its exhibit No.. 15, and was rated fo? taxes for the year 1925 at $4,000 value, and the total tax paid by it on all property, real and personal, in Arkansas for ihe year 1925 was $129.48. On the annual return for the corporation for the year ending January 1, 1926, the value of its personal property was fixed at $15,000 by the secretary, and on the return made to the Arkansas Railroad Commission for the value of the personal property for June 1,1926, was placed by Brooks Shults, secretary, at $6,000. The total value of all personal property as estimated and appraised by Crawford and McClurerwit-nesses for appellees, was $6,412 in October, 1926.
    The net income of the ferry company, as shown by exhibits made by its secretary, Brooks Shults, as reflected by its books, after paying interest on bonds, office expense of J. B. Shults, office expense*of George T. Conway, the salaries allowed to J. B. Shults and George T. Conway, same being allowed in equal amounts until the beginning of this litigation, and the fees paid attorneys and expenses of the bridge litigation, is as follows:
    For year ending May 31,1923.$13,003.08
    For year ending May 31,1924. 7,684.61
    For year ending May 31,1925. 14,966.38
    For year ending May 31,1926. 28,430.84
    For five months of the present fiscal year, a net income of. 14,407.32
    W. J. Paulk, an expert accountant, after an examination-of the books of the appellant company from its organization June 1, 1922, to November 1, 1926, made an exhibit of such audit, using the figures from the books of gross income and actual expenditures, showing the earnings of the ferry for the fiscal years ending on May 31 were as follows.:
    Year 1923.$13,002.07
    Year 1924. 11,184.61
    Year 1925. 24,771.38
    Year ,1926. 35,685.42
    Earnings for 5 months of 1927, the months of May to October, 1926, inclusive . 14,686.76
    Witness stated that $50 a month each for office expense had been paid to J. B. Shults and George T. Conway since May 31, 1923, and salaries of equal amount to these two, varying from year to year, except for the five months of the year ending May 31, 1927, when a salary at the rate of $500 a month was paid Shults and $250 a month to Conway. No capital account being carried, all items for renewals or additional equipment were being charged to expense account, the same as salaries paid employees. The supplies and equipment purchased and charged to this account during this period, with disbursements in dividends, salaries, bonds and interest, attorney’s fees and cost of bridge litigation, all itemized, amounted to $122,904.25. *
    This witness also made a schedule C, showing the estimated gross and net income of the appellant company at fhe reduced rate on automobiles, explaining his method of arriving at the gross income, and stated the rates put in effect by the county court would give one-half the present gross income. Leaving the expenses exactly as they are, except for a slight reduction for income taxes, with a reduction of gross income as above set forth, the net profit at the 35c rate would have been as follows:
    For the fiscal year ending May 31, 1923.$ 4,012.77
    For the fiscal year ending May 31, 1924. 3,445.29
    For the fiscal year ending May 31, 1925. 7,249.42
    For the fiscal year ending May 31, 1926. 11,464.84
    And after 5 months of the present fiscal year ..... 7,335.76

      Witness allowed no salaries to J. B. Shults and George T. Conway on this estimate, and to Brooks Shults, the bookkeeper, only the amount as shown on the books of the company, deducted other items charged to expense account, and made no allowance for amortization nor for liability insurance, casualty insurance, fire insurance or marine insurance, none being paid by the corporation.
    Brooks Shults, secretary of the company, stated the method used by him in arriving at the gross amount that would be received at the 35c rates, and that it would have been, for the 5-months period, $14,472.85, an amount $712.67 less than the amount reached by Paulk, $15,185.52 under his estimate. -Paulk claimed that Shults’ method was wrong in that he multiplied the whole number of cars ferried by the 35e rate, when the number crossing at night paid 70c, the night rate, and that the number crossing at night should have been multiplied by 35c and added to-.the other amount.
    The court held the rates fixed by the county court were reasonable, and from its judgment affirming the order of the county court this appeal is prosecuted.

      J. D. Head and Rose, Hemingway, Cantrell & Lough-borough, for appellant.

      Henry Moore, Jr., for appellee.
   Kirby, J.,

(after stating the facts). The rates of tolls for ferriage fixed by the Miller County Court are by this proceeding challenged as unreasonable and confiscatory, depriving appellant of its property without just compensation.

It appears that no rates of toll or ferriage whatever' had been fixed by the county court after the organization of the appellant corporation and the taking over by it of the Shults ferry, operated across Red River at Fulton, the last rates fixed by the county court having been made in 1922. Under that schedule $1 was allowed to be charged as toll for ferriage of automobiles and $1 for trucks per ton. No complaint is made of any of the rates fixed in the present schedule except those relating to-automobiles and trucks, which are controlling and produce over 90 per cent, of the revenues of the ferry. _

.The county court is given authority, for the protection of the public, to fix the rates of tolls for ferries, and, while it is true that ferries are established for the accommodation of the public, rather than for the gain and advantage of persons operating them, it is also true that the rates fixed must be reasonable, and the question of the reasonableness of ferry rates is one solely for the courts. State v. Arkadelphia Lumber Co., 70 Ark. 330, 67 S. W. 1011 ; Kelly v. Altemus, 34 Ark. 184, 36 Am. Rep. 6; Ex Parte Grayson, 169 Ark. 986, 277 S. W. 538; Covington v. St. Francis County, 77 Ark. 258, 91 S. W. 186.

The courts cannot interfere with the rates or tolls of ferries fixed by the county court unless same are unreasonable, and the burden is on the complaining party to show the unreasonableness of the rates attacked, the presumption being in favor of the reasonableness of such rates. Arkadelphia Electric Light Co. v. Arkadelphia, 99 Ark. 178, 137 S. W. 1093.

The value of the property devoted to the public use should be considered and-determined as of the time when the inquiry is made regarding the rates. Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders of the County of Hudson, 264 Fed. 998; San Diego Land & Town Co. v. National City, 174 U. S. 739, 19 S. Ct. 804, 14 L. Ed. 1154; Smyth v. Ames, 169 U. S. 466, 18 S. Ct. 418, 42 L. Ed. 819; Minnesota Rate Cases, 230 U. S. 352, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. N. S. 1151, Ann. Cas. 1916A, 18.

“Past losses cannot be used to enhance the value of the property or to support a claim that rates for the future are confiscatory. * * * Profits of the past cannot be used to sustain confiscatory rates for the future.” Board of Public Utility Commrs. v. New York Telephone Co., 271 U. S. 23, 46 S. Ct. 363, 70 U. S. Law. ed. 808.

The value of the Fulton Ferry was fixed at $30,000 when a half interest therein was sold to the Conways for $15,000, and that such was its reasonable value was recognized upon the organization of the appellant corporation taking it over' for capitalization at that figure.

Appellant, in its argument here, uses this amount, although he does call it the “barebone value,” and insists that a going concern value of $6,000 should be added, but it was a going concern when it was taken over and capitalized, has continued such ever since, and is better equipped now than then, after payment of all operating expenses, profits and dividends. It is true the secretary of the company puts the present value of the personal property of the corporation at $30,000, hut it was returned by him for the year 1925 for taxation at only $4,000 and only paid taxes of $129.48 on all real and personal property in Arkansas for that year. The value of its personal property was placed at $15,000 by the .secretary of the corporation, in its annual return for the year ending January 1, 1926, and on its return made to the Arkansas Railroad Commission the value of the personal property was reported as of January 1,1926, at $6,000. An inventory and appraisement of its personal property was" made by Crawford and McClure, witnesses for appellees, in October, 1926, placing the value at $6,412. Under all the circumstances, no such showing is made as warrants the consideration of an increased value as a going concern.

Neither was error committed in not allowing or considering any additional .rental value of the ferry site owned by the corporation, as contended for. The value of the ferry site was evidently included in the capitalization of the corporation, as correctly indicated by the sale of a one-half interest in the Shults Ferry, a going concern, to the Conways, for the price of $15,000, and the organization of the appellant company taking it over for continued operation as its entire capital at a $30,000 valuation, recognized this to be true. This view is strengthened also by the testimony showing various, official reports thereafter made by appellant corporation, placing the value of its personal property at one-half, or even a lower sum than one-half, of the $30,000, and the other testimony relating thereto showing the cost of construction and reproduction.

Appellant’s contention that, the circuit court should have allowed or considered the cost of liability insurance as expense of operation is also without merit. No such insurance had been, was being or intended to be carried by it, and the undisputed testimony shows-that, from the long experience of operation of all five ferries on Bed River in Miller County, two of them for a period of more than forty years, no substantial damage had resulted or been incurred, and it cannot be said that an ordinarily prudent business man would be justified in incurring the great expense of this kind of insurance, in view of such experience. No great amount was claimed or estimated, and none allowed for fire insurance, which would ordinarily be considered a proper charge, but .it is also true that no fire insurance had been carried and no fire losses had occurred during this period of operation.

■ Appellant should have been allowed the $6,000 yearly claimed, and the court should have considered the amount for amortization of the plant during the next three years only when it was shown the ferry would be displaced by the erection of a bridge.

The court should also have considered, in making allowance for necessary expenses of operation, a .reasonable amount for “emergency work,” as appellant calls it, required done in reconditioning “the shifting river bank” after overflows, for the road to the landing. This, notwithstanding no charge had theretofore been made against the company by J. B. Shults, its president, and manager of the ferry, for such work done by teams and men from his plantation hard by. Such work had been done, was necessary, and the testimony shows it will continue necessary to be done so long as the ferry is operated from “the shifting bank” of the overflowing river. We have concluded, however, that the testimony does not show such a probability now of suspension of travel over this State Highway road, the eastern approach to the ferry, because of periodic extraordinary overflows of the river, since the roadbed has been raised and graveled, as warrants consideration of the allowance of any amount for loss of tolls or decreased income on that account.

The gross income from the ferry was shown for each of the years.that it had been operated by the appellant corporation and the actual expenses of such operation. The gross receipts for the first five months of the fiscal year that will end May 31,1927, June to October, 1926, are shown to be $31,013:69, and, as appellant puts, it in its brief, “the receipts from the ferry are approximately $60,000 a year, collected in small change from each passenger, and the items of expense are disbursed in small amounts, requiring care and economy.”

■ The net income, as shown by exhibits made by Brooks Shults, secretary, from appellant’s books, by taking the actual expenses charged for operation by the company from the amount of the gross receipts, including, as such expenses, office expense each of J. B. Shults, president, and George T. Conway, vice president, salaries allowed to each of said parties, and the fees and expenses of attorneys in connection with the bridge litigation, was:

For the year ending May 31, 1923.$13,003.08

For the year ending May 31, 1926. 28,430.84

And five months .of the present fiscal year. 14,407.32

Paulk, an expert accountant, made an examination of the books of the appellant company from June, 1922, to November 1, 1926, and an exhibit of the result of such audit, showing- the gross income and 'actual expenditures, the earnings for the fiscal year ending May 31, follows:

Year 1923 .$13,002.07

Year 1924 ..'.. 35,685.42

For 5 months of 1927.. 14,686.76

His schedules showed also the profits made each year by the ferry company, after adding to the net profits, as shown by its books, the salaries and office expenses paid to J. B. Shults and George T. Conway and the interest paid on bonds given for tlio bridge franchise, one-half to Conway and one-half to Shults, which, of course, greatly increased the showing of net earnings. There is little difference in the amounts shown as net profits for the five-month period in 1927 by the secretary of the company, $14,407.32, and by accountant Paulk, $14,686.76.

Paulk made schedules also showing the gross and' net income of the appellant company for the years mentioned at the reduced rate of 35 cents for ferriage of automobiles, and for the five months of the fiscal year 1927, leaving the expenses exactly as charged, except a slight reduction for income taxes, which will be reduced as the income was reduced, showing that with such reductions of gross income the net profit at the 35c rate would have been as follows:

■ For the year 1923..$ 4,012.77

For the year 1926.. 11,464.84

For the five months of the present fiscal year.!. 7,335.76

In making these figures, however, be allowed no salaries for the officials and only $100 salary for Brooks Shults, the secretary and bookkeeper, as charged on the company’s books.

The actual audit of total expenses as charged on the books for ferry operation by the secretary for the five months period (attorneys’ fees and expense of bridge litigation not included) is $12,685.52; to this should be added, as above shown, the proportionate amount of the yearly allowance for amortization, $2,500, making in all $15,185.52. The estimated income at the 35c rates for the same period'is $14,472.85, according to the secretary’s calculation, not enough to pay the expenses as .indicated. The income from the reduced rates as estimated by Paulk, one-half that produced by the old rates, is $15,506.84: $321.32 more than the expenses for this period, leaving only a negligible amount for a return on the value of the property used in rendering service to the public.

It can make no'difference that the plant or ferry may have been entirely paid for out of excessive, profits from high rates in past years, since the law, in the protection of the owner in enjoyment of the property, does not consider the source from which the money came to purchase it, but only that it is used in rendering the service.

It is true the estimate of the independent accountant showed a substantial amount of earnings over expenses for the five-month period of operation at the 35c rate, but from it was excluded any charge for the salaries of officers,' other items properly chargeable, and no allowance was made for amortization. There might well be excluded from the expense of operation the charge of any salary paid to the vice president, who had no real duties to perform relative to the operation of the ferry, but an additional allowance for compensation could be made to the secretary up to $250 a month, which would offset largely the allowance to the vice president, and not be unreasonable compensation to the secretary for the service rendered, as shown by the testimony. The salary as allowed to the president was begun to be charged and paid before this rate litigation developed, and, although it is large in comparison with the salary of other years, the testimony shows him to be an experienced and capable man, devoting virtually his entire time and attention to the management of the ferry, which has been so efficiently done that no damage to persons and property making use of the ferry has ever resulted during the long time of his supervision. Then, too, in other years it made no difference that the salary reflected by the books was not large, since ample compensation was realized by him out of profits and dividends.

From the testimony and estimates the circuit court should have found that day rates of toll of 50 cents for ferriage of automobiles and 50 cents for trucks (per ton), instead of the 35-cent rate made by the county court, with a night-rate of'75 cents for automobiles and 75 cents per ton for trucks, instead of 70 cents, as fixed by the county court, would have been reasonable and yielded just compensation to the ferry company upon the value of its property used in rendering service to the public. Coal District Power Co. v. Booneville, 161 Ark. 638, 256 S. W. 871.

The said rates as fixed by the county court are shown to have been unreasonable, and the circuit court erred in holding otherwise and in not finding and fixing the rates designated above, which will afford a fair and just return upon the investment as reasonable, for which errors its judgment will be reversed, and the cause remanded with directions to reverse and overrule the judgment and order of the county court fixing said unreasonable rates, and adjudge and fix the said rates as reasonable, and have certified its judgment to that court for establishment of the said rates herein designated as reasonable rates of toll for the ferriage of automobiles and trucks at the Pul-ton Perry operated by appellant.

It is so ordered.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    International Shoe Company v. Pinkus.
    Opinion delivered March 21, 1927.
    1. Insolvent debtor — effect of appointment of receiver. — The effect of the appointment of a receiver of an insolvent debtor, under Crawford & Moses’ Dig., §§ 5885-5893, is the same as if the debtor had made an assignment for the benefit of his creditors.
    2. Bankruptcy — effect of petitioning for appointment of receiver. — Filing a petition in the chancery court by a debtor is an act of bankruptcy within the Federal Bankruptcy Law.
    3. Bankruptcy — jurisdiction.—The Federal bankruptcy court does not obtain jurisdiction of the estate of a debtor in the absence either of a voluntary petition by the debtor or a petition by creditors as provided by law.
    4. Bankruptcy — state insolvency laws. — The Federal Bankruptcy Act does not abrogate or repeal the insolvency laws of a State, but merely suspends its operation in- so far as the State statute comes in conflict.
    5. Bankruptcy — state insolvency act. — Unless creditors of an insolvent take action to give the bankruptcy court jurisdiction, a proceeding in the State court, under Crawford & Moses’ Dig., §§ 5885-5893, for the appointment of a receiver for an insolvent debtor, is valid.
    6. Bankruptcy — jurisdiction.—Jurisdiction of the Federal Bankruptcy Court in bankruptcy matters is exclusive when properly invoked in the administration of the affairs of insolvent debtors.
    7. Bankruptcy — jurisdiction.,—Even though the State chancery court has jurisdiction, under Crawford & Mioses’ Dig., §§ 5885-5893, to declare an insolvent debtor a bankrupt, it cannot prevent either resident or nonresident creditors from invoking the jurisdiction of the Federal Bankruptcy Court under the Bankruptcy Act (U. S. Comp. Stat., § 9585 et seq.).

    8. Bankruptcy — disposition of property for creditors’ benefit.— The fact that an insolvent debtor may go into the bankruptcy court, or be forced there by his creditors, does not prevent him from disposing of his property where the jurisdiction of that court is not properly invoked.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      Streett db Burnside, for appellant.

      Golden db Golden, E. E. Hopson and N. B. Scott, for appellee.
   Mehaffy, J.

The appellant filed its complaint in the chancery court of Chicot County, alleging that it was a corporation legally organized and doing an interstate business; that its transaction with Pinkus constituted interstate commerce, and that it was authorized to maintain the suit; that the defendant, I. Pinkus, and the garnishees, M. A. Threet, M. A. Threet as receiver, Sam Dessent, Bank of Dermott, and Exchange Bank & Trust Company were all citizens and residents of the State of Arkansas, the last two being banking corporations. It alleged that, on the 24th day of August, 1925, it obtained judgment against I. Pinkus in the common pleas court of Chicot County for $463.43, with interest from December 9. 1924, at the rate of 6 per cent, per annum, and for all costs. That no part of said judgment has been paid; that an execution was issued against the property of Pinkus, and the sheriff reported that he was unable to find any property of the defendant upon which to levy. It further alleged that the garnishee, M. A, Threet, and M- A. Threet as receiver, has in his possession and control said moneys, property of defendant Pinkus, acquired by the sale of merchandise and fixtures belonging to Pinkus under certain proceedings now pending in the Chicot Chancery Court, wherein I. Pinkus was plaintiff and Ed Cannon and other creditors of the said Pinkus, including the plaintiff herein, are defendants, instituted under' and by virtue of act 48 of the Acts of the General Assembly for 1897, being now §§ 5885 to 5893, inclusive, of Crawford & Moses’ Digest. ’ That all proceedings of the Chicot Chancery Court under the State statute are void, because the insolvency laws of the State Were suspended by the bankrupt act; that the moneys now held by Threet, individually or as receiver, belong to I. Pinkus, and are subject to the payment of judgment in favor of plaintiff; that the said Threet, individually and as receiver, has said moneys deposited in one or both of the banks named as garnishees; that Sam Dessent owes Pinkus certain sums of money arising from sale and purchase of merchandise and fixtures.

Plaintiff attached interrogatories to be answered under oath by each of the garnishees. Plaintiff attaches a copy of the judgment in the common pleas court, the return of the sheriff, and the petition of defendant, Pinkus, to be declared an insolvent, and for the appointment of a receiver; also shoivs the exhibits attached to the petition. Plaintiff also attaches, as an exhibit, the decree and orders of the chancery court. Plaintiff also exhibits the transcripts of the answer of Threet' as receiver, showing the amount realized from the sale of the store and fixtures belonging to I. Pinkus. Exchange Bank & Trust Company also filed answer to interrogatories, which were exhibited with plaintiff’s complaint. Defendants filed demurrers to plaintiff’s complaint, and the court sustained the demurrers and dismissed plaintiff’s complaint.

It is contended by the appellant, first, that the Federal bankrupt act of 1898 superseded and suspended the insolvency laws of the State of Arkansas, in so far as the instant case is concerned, and that the proceedings attempted to be had thereunder in this case are coram ihon judice, and void, second, that; if the chancery court had jurisdiction to declare Pinkus a bankrupt, it could not bind appellant, a nonresident of the State, in such proceeding.

The Arkansas statute with reference to insolvent debtors simply authorizes a debtor to go in the chancery court and ask for the appointment of a receiver to take charge of his property-and distribute the same among his creditors. The effect of this is the same as if the debtor had made an assignment of his property for the benefit of his creditors, and this court has repeatedly held that a debtor may make an assignment of all his property, but that he cannot reserve any to himself, except, of course, the exemptions he is allowed by the Constitution.

This court, however, has said: “It is no longer questioned that the national bankruptcy law brooks no interference with its operation, and supersedes all State insolvency laws in' conflict with it or that provide the same relief. But it is also true that such Federal bankruptcy law does not repeal or abrogate State laws in conflict, but only supersedes and suspends their operation for the time being upon persons or cases within tjae purview of the Federal statute. The national bankruptcy act does not apply to ^ill persons and all corporations. * * * It is true that the appointment of a receiver by the State court for the insolvent company constituted an act of bankruptcy within the meaning of § 3a (4) of the bankruptcy act, which could have been taken advantage of by the creditors of said company by involuntary proceedings at any time within the four months thereafter, and which was done on the 17th day of January, 1910.” Roberts Cotton Oil Co. v. F. E. Morse & Co., 97 Ark. 513, 135 S. W. 334.

The debtor in the case at bar could have filed his petition in voluntary bankruptcy, and the Federal court would have ordered a distribution of his property among his creditors, just as was directed by the chancery court. But there is no law requiring him to go into voluntary bankruptcy, and, if he had been required by law or any other force to do so, his bankruptcy would not have been voluntary. 'Where the debtor’s assets are small, it is frequently very much better for his creditors to have him either make an assignment for the benefit of his creditors or have a receiver appointed by the chancery court, to whom all of his property shall be turned over, to he distributed among his creditors, than it would be for him to go into voluntary bankruptcy. When he filed his petition for the appointment of a receiver in the chancery court, he committed an act of bankruptcy under the Federal bankruptcy law, but, in order for the bankruptcy court to get jurisdiction, the Federal law requires cer-. tain procedure. There must be a petition by three or more creditors who have provable claims against the debtor, which amount in the aggregate to $500 or over, or, if all the creditors are less than 12, then one creditor may file petition against the debtor. The filing a petition in the chancery court for the appointment of a receiver by an insolvent debtor, or the making of an assignment for the benefit of his creditors, is an act of bankruptcy, but an act of bankruptcy of itself does not put one in the Federal court. There must either be a voluntary petition by the debtor or a petition by the creditors as provided by law. If the creditors had filed a petition against the debtor in the bankrupt court, the bankrupt court would have had jurisdiction, and the State court could have acted no further, but the Federal bankrupt act does not abrogate or repeal the insolvency laws of a State, even where the insolvency laws are in conflict with the bankruptcy act. But, in such case, it only suspends the State statute, but, notwithstanding the bankrupt act, State statutes that are not in conflict therewith are still operative, and it has been held, both by this •court and by the Federal court, even where the State statute is in conflict with the Federal statute, the bankruptcy act suspends the operation only upon persons or cases within the purview of the Federal statute. Unless the creditors take action for the purpose of giving the bankrupt court jurisdiction, the proceeding in the State court is valid. The statute does not prohibit creditors from filing petition in bankruptcy, and does not require them to release or relinquish their debt or claim against the debtor. They may file their claim and participate in the proceeds, or they may decline to do so and still have their judgment or claim against the debtor. Nothing - that the debtor could do could defeat the right of the creditors to invoke the bankruptcy law or have the bankrupt estate administered in the Federal court. The bankruptcy law is paramount, and the jurisdiction of the Federal court in bankruptcy, when properly invoked in the administration of the affairs of insolvent persons or corporations, is exclusive. But the bankruptcy court does not take jurisdiction unless a request to do so is made by some creditor or the debtor. There are doubtless many insolvent persons who do not wish to go into voluntary bankruptcy, and whose situation is such that the creditors could not put them into involuntary bankruptcy. But, in all cases where the jurisdiction of the Federal court in bankruptcy is properly invoked, all procedure thereafter in the State court must cease. If there were no Statutes on insolvency, an insolvent debtor could either make an assignment, turn over all his property for the benefit of his creditors, or could apply to the chancery court for the appointment of a receiver to take charge of all of his property.

The appellant next insists that, even if the chancery court had jurisdiction to declare Pinkus a bankrupt, it could not bind the appellant, a nonresident of the State.' It not only could not bind a nonresident, but it could not bind a resident creditor. No. creditors .are prevented from invoking the jurisdiction of the bankrupt court, whether they are residents or nonresidents, and no one can get a release from his debts in any court other than the bankrupt' court, except by the voluntary act of the creditor. The creditor may or may not release or relinquish his claim. If he wishes to participate in the proceeds or the assets of the debtor, he may be required to accept his pro rata part in full payment, tout he is not required to do this. He can decline to do so, and pursue any remedy he may have, including an application or petition in the bankrupt court, but, if he does not wish to pursue this remedy, then the debtor may, through the chancery court, do what he might do by making a general assignment, and, although either constitutes an act of bankruptcy, it will be binding until the jurisdiction of the Federal court is properly invoked. Simply because an insolvent debtor may go into the bankruptcy court, or may be forced to go by a petition of creditors, does not prevent him from disposing of all of his property for the benefit of all of his creditors, unless the jurisdiction of the bankrupt court is properly invoked, and we therefore conclude that, unless and until the jurisdiction of the bankrupt court is properly invoked, the voluntary agreement of the creditors is binding. It follows from what we have said that the decree of the chancery court must be affirmed.


author: Mehabby, J.

text:
    Ault v. McGaughey.
    Opinion delivered March 21, 1927.
    1. Master and servant — negligence—failure to brace wall.— In an action for the death of a bricklayer caused by the caving in of a dirt wall in an excavation, the issue of the master’s negligence in failing to brace the wall was for the jury.
    2. Master and servant — reliance on master’s judgment. — While a servant assumes the risks and hazards ordinarily incident to - his work, he has a right to rely upon the master’s judgment unless the danger is so obvious that no ordinarily prudent person would incur it under like circumstances.

      3. Master and servant — safe place to work. — A master is under duty to use ordinary care to provide a reasonably safe place for the servant to work.
    4. Master and servant — questions for jury. — In an action for death of a bricklayer caused by the caving-in of an unbraced dirt wall in an excavation, where he was instructed to lay brick, the issues of contributory negligence and assumed risk held under the evidence to be for the jury.
    5. Master and servant — safe place to work. — In an action for negligence in causing the death of a bricklayer caused by the caving-in of an unbraced dirt wall in an excavation, the master was required to use due care to provide a safe place to work, notwithstanding the hazards and dangers changed during the progress of construction.
    6. Master and servant — duty to furnish safe place — instruc-. tions. — In an action for negligently causing the death of a bricklayer by failing to brace a dirt wall, an instruction that the defendants were under duty to use such care ás ordinarily prudent builders would have used under the circumstances, and, if prudent builders would have braced the earth wall, then it was defendants’ duty to do so, held not abstract.
    7. Trial — objection to part of statement. — In an action against a master for death of a servant, testimony of the widow. as to what the deceased and his mother had told her as to deceased’s age was not erroneously admitied, where defendant’s objection was only as to -admission of what deceased had told his wife.
    8. Evidence — hearsay—age.—The date of a person’s birth máy be testified to by members of his family, although they may know of the fact only by hearsay founded on family tradition.
    9. Evidence — diagram.—In an action for death of a servant caused by a cave-in of an unbraced dirt wall, the admission of a diagram sufficiently identified was not prejudicial.
    10. Death — damages to deceased’s mother — evidence.—In an action for death, it was not error to admit in evidence checks to corroborate his mother’s testimony that her son had contributed to her support, as tending to- prove the extent of her loss.
    11. Death — conscious pain and suffering. — In an action for a wrongful death of a laborer from the caving-in of a dirt wall, - proof that there were three successive slides which gradually smothered deceased, held to sustain a finding of $1,500 for the benefit of his estate.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.

      Martin, Wootton S Martin, T. D. Wynne and Chas. A. Miller, for appellant.

      Witt (& Witt and Murphy S Wood, for appellee.
   Mehabby, J.

The appellee, plaintiff below, as administratrix of the estate of T. L. McGraughey, deceased, filed suit in the Garland Circuit Court against the appellants, who were defendants below, alleging that the defendants, W. F. Ault and C. H. Burden, were partners doing a general contracting business in the State of Arkansas, and that deceased, T. L. McGaughey, was a bricklayer, and, on the 14th day of March, 1924, was working in the employ of the defendants, engaged in laying bricks in the construction of a building on Main Street, in Little Book, and that the defendants were in charge of the construction of said building, and, in the construction, excavated a basement about 14 feet below the street level, and started the walls of the said building about fourteen feet below the street level; that said building was being constructed adjoining a three-story brick building on the corner of 5th and Main Streets, known as’ the Hegarty building; that the Hegarty building had no basement, and that it was necessary, in the construction of the building, for defendants to excavate under the south wall of the Hegarty building and to construct a wall 14 feet high under said Hegarty wall; that defendants had excavated a section under the Hegarty wall about 8 feet in length and to a depth of about 14 feet, and had underpinned the wall for the purpose of foundation under said- wall, and that plaintiffs ’ intestate was ordered by the foreman in charge to begin constructing the footings for the wall under the Hegarty wall, and that, under the direction of the foreman, he began laying bricks for the footing of said wall; that it was the duty of the defendants to make the place reasonably safe, and that defendants should have had the dirt wall under the Hegarty wall braced so that it would not cave or slide, and, if they had had proper, regard for the safety of their employees, they would have braced the dirt wall to prevent caving, alleging that they negligently failed to brace the wall or to protect it from sliding; that deceased was not aware of the danger, and obeyed the command of his superior, and began to lay bricks, and that, while he was so engaged, the wall caved in on him and completely covered him and crushed him to death. There were three distinct slides of dirt; the first covered him to his waist line, the second to his shoulders, and the third covered his entire body and smothered him to death. The first and second slides crushed and bruised his body and caused him to suffer great and excruciating pain of body and mind, and that the third slide also caused him to suffer until he died.

' Plaintiffs prayed judgment for the sum of $25,000. Mrs. Ella Wallace, mother of deceased, filed a complaint, and alleged that deceased contributed to her support, and would have continued to do so had he lived, and asked judgment for $8,035.

The defendants answered, denying all the allegations of. negligence contained in 'the complaints, and denied that it was their duty to make the place safe, and denied that it was their duty to have the wall braced so that it would not slide, and they denied that the deceased did not know of the dangers; alleged that the slide was one continuous act, and that death was instantaneous. Defendants also alleged that they were not guilty of any negligence, and that there was nothing to indicate to the defendants that a slide would occur or that there was any danger; alleged that they took all the necessary precautions to prevent injury, and that plaintiffs’ intestate’s death was due to a risk that he assumed. They' also pleaded contributory negligence and negligence of fellow-servant.

The trial resulted in a verdict in the sum of $3,000 for the mother, $8,000 in favor of the widow, and $1,500 for the benefit of the éstate, making a total of $12,500. The defendants filed motion for a new trial, which motion was by the court overruled, and exceptions saved by defendants, and appeal prayed and granted.

Dorothy McGaughey testified that she was the widow of the deceased, that he was a bricklayer, earning $12 a day, and that he spent very little on himself; that he made about $250 a month, and that she got the benefit of about $150 of it; that deceased was in good health, a strong man, and never lost a day. Deceased was 27 years of age. She testified that she was the administratrix of the estate, and stated that her deceased husband and his mother told her that deceased was 27 years old.

A clerk of the probate court of Garland County testified as to the issuing of letters of administration to plaintiff.

Fred J. Hayes testified that plaintiff was his stepdaughter; that, when they got the news of her husband’s death, he came to Little Bock, saw the excavation, and the dirt was sticky, muddy clay, and that the cave-in was by a big opening or window. It was open, and had no cover. He said he looked into the room adjoining the cave-in and could see old barrels and an ice-box that weighed a ton or more; saw no shoring or bracing against the earth. Witness reached Little Bock about 11 o ’clock, went to the undertaker first, and then, in about 2.0 minutes, went to tlie scene of the accident; caime back to Little Bock again Tuesday. Cleveland Smith testified, for the plaintiff, that he was city engineer of Hot Springs, and went to Little Bock and made an inspection of the Hegarty building and surroundings.

The room at the southeast corner adjoining the Back building is about 12 or 15 feet wide and about 50 or 60 feet long, has no floor; the window was in the extreme end of the open room in the southeast corner of the Hegarty building. A diagram was made and introduced in evidence, over the objection of the defendants. Witness testified that he had had quite a bit'of experience in making excavations, but never had any engineering for the construction of buildings or excavating of basements; observed the kind and character of earth in Little Bock, but did not know the exact nature of the soil at the Back building; that he made his observation and made the diagram for the purpose of this suit.

Frank J. Dove, a contractor of Little Rock, testified that he had an excavating machine that they used in excavating work for other contractors. The principal excavating work had been for the Donaghey building and clearing the lot where the Lafayette Hotel was built. He observed the excavating at the Back building; that the formation was clay and gravel, and nearer the bottom it was more of a sandy formation; that the earth was likely to cave or slide in a perpendicular excavation; that it did cave in the Donaghey Building. He had been following engineering since 1906. They prevented cav-ings by bracing the walls with lumber or jacks. On cross-examination witness said they did not do any building, but they had excavated for building; that they had. a cave-in at the Donaghey building; had happened the next morning after a rain. The reputation of Ault & Burden is good. He testified that they braced the earth in sewer ditches, and that the Back building would not have caved if it had been braced.

H. S. 'Cole, testified as to the weather conditions at the time of the accident, as to rainfall and the direction and velocity of the wind.

L. P. Whitlock testified that he had observed the excavating prior to the time of the accident; that they had dug out the wall under the Hegarty building, and that it had no braces. The material removed was clay, gravel and sand. The excavation was about 15 feet deep, and the construction of the wall was being done under the brick wall. There were no braces under it; that he did not see any braces against the earth before the accident; that he .saw that the work was dangerous.

Other witnesses testified as to the condition of the soil and the manner of excavating and constructing the wall. John R. Hughes, a plumber, testified that he remembered the accident, and looked over the condition of the building where the Hegarty drug building was, and that the sewer slid in with the cave-in. He testified that the sewer had been torn out, and that the earth was wet from the rain the night before; that the sewer went out with the cave-in. He did not think that the sewer kept it in a saturated condition, but the rain did it; that he had every reason to believe that the sewer was all right until the rain came; that there 'had been no leak in the sewer; if there had been, the earth would have been stained, but it was not stained; that there was nothing-wrong with the plumbing before the accident.

Other witnesses testified about the excavation and plumbing. Frank Symmers, another bricklayer, working on the same job with McGaughey when he was killed, said they were laying bricks about 4 feet apart, underpinning the building by pier. They were, at the time, working about 13 feet from the top, and were down below the main part of the excavation. They built the foundations in sections, each one approximately. 8 feet wide. The accident occurred about a quarter of nine in the morning, after they had been working three-quarters of an hour. It was the first time they had been working in that span. He said: “We had been worthing in the section about five minutes; don’t know exactly how the slide happened; it hit me across the shoulders as I was stooping. "When I got up, deceased was buried half way up to his knees. He hollered for one of the laborers to help him out, and that was the last I saw of him. The second slide came, and they got me uncovered. I don’t know thé cause of it, or anything. There was just a moment between the first and second slides. After the second slide, then a third slide. I had my hands up when the second slide came, and they saw the tips of my fingers above the dirt. I was about gone when they dug down to me. There was a smothering sensation, not any other pain; the earth was on top of me. Nobody in particular directed us to go down there to work; when we first went we were directed to do these footings by the superintendent on the job. No one said anything about any danger. When the dirt covered me up, it seemed hours, but it was a very short time. The wall was not braced in any way. ’ ’

There were several other witnesses who testified, but the testimony was in substance about the same as we have set out. Mr. Copeman testified for the defendants: He lived in Pensacola, Florida; had about nine years experience as superintendent; about 18 years in the building business. We did this work by sections. We would take .a section every 8 feet along in the 140 feet. This was done as a precaution. When we would finish one section we would move our digging crew.' My attention was on the job all the time; I was in the basement all day.” Witness then testified about th'e formation of the earth about the place, and that they made a test about the compactness and strength to support the weight above it. “I found no defects, not one. There was a light rain the evening before, but it did not have any influence on the dirt. I inspected the section to see if there was any evidence that a cave-in or anything might occur. There was no evidence of any defect. I did not have the wall braced. The brick walls above were braced; did not brace the earth, for the reason that I did not think it was necessary on account of the, way the dirt was standing. Nothing occurred to lead us to believe that it was necessary to shore up the earth and walls. I ascertained, a satisfactory cause. It was an old broken sewer. I could tell it was an old broken pipe by the joints; that, in my opinion, caused the cave-in. We did not know anything about the sewer pipe before that time. I knew nothing about it, and had no occasion to inquire.”

This witness testified at great length about the condition and the care that was taken, and several other witnesses testified for defendants, and the testimony tended to show that not only were the contractors of good reputation, but that care wTas exercised, and that there was nothing to indicate any danger. The plaintiff then introduced witnesses in rebuttal, but the testimony in the whole ease was quite lengthy, and we think we have set out enough to show the substance of the testimony on the real issues of the case.

The appellant’s first contention is that its peremptory instruction should have been given by the court, and they say that plaintiffs’ theory that the wall should have been shored or braced was not only impracticable, but impossible; but the testimony in the witnesses for the plaintiff tends to show not only that the dirt wall could have been braced, but that it should have been dune in order to make the place reasonably safe. It is true that, when an employee enters the service of his employer, he assumes all of the risks ordinarily incident to the business. This court has many times held that he assumes all the risk and hazard ordinarily incident to the business, and, of course, whether the risk was usual or ordinary or not, if it were obvious, or plaintiff knew of the danger, this would be a complete defense. But this court has said: “The servant has a right to rely on the judgment of the master, unless the danger is so obvious that no prudent man would incur it under like circumstances.” Choctaw, Okla. & G. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. N. S. 837, 7 Ann. Cas. 430.

The appellant, however, argues in this case that its peremptory instruction should have been given because the circumstances were such that even -the defendants themselves had no opportunity of knowing, and that there was nothing to put them upon inquiry. And in support of their contention they quote as follows from Labatt on Master & Servant: “It is not negligence to fail to provide against an accident of such a nature that nobody could have foreseen it and that no prudence could have anticipated the need of guarding against it. After an accident has occurred, it is easy to see what may have prevented it; but that itself does not prove or tend to prove that reasonable or ordinary care would have anticipated or guarded against it.”

Appellants cite many other cases to the same effect, and, if the proof showed that the injury was caused by an accident, or that the accident was of such a nature that no one could have foreseen it and that no prudence-could have anticipated the need of guarding against it, then, of course, it would not be negligence. However, we think that'there is ample proof on the question of the negligence of the employer to make it a question for the jury. Witnesses testified that the earth was not braced in any way, and one witness testified that he had every reason to believe that the sewer was all right until the cave-in came, and that, from the condition of the ground, he would judge that there was no leak in the sewer before that time. Other witnesses testified that there was no brace at all, and it would not be safe to excavate under a brick wall three stories high, for the distance that they excavated under the Hegarty building, without bracing the earth. Witnesses who were competent to testify on the subject state that the earth was not braced, and that it was dangerous without being braced.

Without quoting all the testimony, it may be said that, while there was some conflict, in the testimony, yet there was ample testimony, we think, to submit the question to the jury for its determination as to whether the appellant was guilty of negligence in its failure-to brace the wall. , .

It was, of course, the duty of the employer to use ordinary care to provide a reasonably safe place for the employee to work. And whether the employer did this or not was a question of fact for the jury, as was also the question of assumed risk and contributory negligence.

Appellant’s next contention is that instruction number one, given on behalf of plaintiff, was erroneous. Their contention is that this instruction is abstract, that it is equally applicable to any state of facts relating to master and servant. That, of course, may also be said of an instruction to the jury defining negligence. The instruction complained of is as follows: “It was the duty of the defendants to exercise ordinary care to furnish their servants a reasonably safe place in which to work and to make reasonable inspection from time to time to see that the place was kept safe. The degree of care required of defendants should be tested by the circumstances surrounding the character of the employment and the particular facts of the. case, and, if you believe from a preponderance or greater weight of evidence that defendants failed to use such care, and the death of T. L. McGaughey resulted from such negligence, your verdict should be for the plaintiff. ’ ’

This court has many times passed on instructions similar to the one under discussion, and has held that such instructions were properly given. The instruction is given in the case of the Central Coal & Coke Co. v. Barnes, 149 Ark. 533, 233 S. W. 833; Wisconsin & Arkansas Lumber Co. v. Standridge, 132 Ark. 535, 201 S. W. 295.

The appellant contends that the instruction was not applicable, because the work itself constantly changed— as it progressed, the hazards and dangers increased or diminished as the work proceeded. We think that in this particular case the dangers or hazards did not increase or diminish as the work progressed in the sense contended for by the appellant. The testimony of the witnesses showed that it should have been braced; that that was the duty of the master; if it had been braced, there would have been no danger, and the hazard would not have increased or diminished as the work progressed. It is true that there may be many places that could not be made safe at all, but here the jury was told that it was the duty of the master to exercise ordinary care to furnish a reasonably safe place. Some witnesses have testified that the wall should have been braced, that it was unsafe to work there without the Avail being braced, and that braces Avould have made it safe. And avg conclude that there aves no error in giving*instruction number one.

Appellant next complains that the court gave instruction number two, but they simply state that the objections to this instruction are the same as the objection to number one, that it is purely abstract. It is unnecesarv to set out instruction number two in full, but it simply told the jury that it was the duty of the defendants to use such care, skill and foresight as ordinarily prudent builders Avould have used under the circumstances, and that, if they believe from a preponderance of the evidence that a builder of ordinary skill and prudence would have braced the earth, then it was defendant’s duty to do so, and if they find that the defendant failed, and, on account of such failure, deceased was killed, the verdict would be for the plaintiff. We see no objections to instruction number two, and number three is objected to because appellants claim it is abstract and argumentative, involved, and misleading.

In fact, the appellant complains about the instruction above named, as well as number five, as being-abstract, and also objects to number five because it is stated that it excludes from the consideration of the jury the defense of assumed risk. We think, however, that, when thé instructions are considered as a whole, they clearly state the law applicable to the case, and it would serve no useful purpose to set them out at length.

Appellants also object to certain testimony admitted by the trial court. Among other things they object to the testimony of the plaintiff in stating the age of her deceased husband. She was asked how she knew the age of her husband, and answered, “He told me how old he was, and his mother told me.” Objection was made to this answer, as it was a statement made to the administratrix of the estate by the deceased, but the answer included the statement that his mother told her, which was not asked to be excluded, and the appellant did not ask that that portion of the answer that her husband’s mother told her be excluded. Hearsay evidence as to age may be the best evidence that can be had. At any rate, it is usually admissible. “Another required exception to the hearsay rule relates to family tradition or pedigree. Such • evidence is admitted because it is the best the nature of the case admits, and because greater evils are apprehended by rejection of such evidence than from its admission. The law has relaxed general rules and allowed the exception. * * * And so the date of a person’s birth may be testified to by members of his family, although they may know of the fact only by hearsay founded on family tradition.” 10 it. C. L., 963.

While the hearsay rule is well established, yet there are many exceptions. “Proof of the age of a person may generally be made by the testimony of a relative or other person who is in such position to have personal knowledge of such age. But the date of a person’s birth may also be testified to by members of his family; though they know the fact only by hearsay, based on family tradition.” 3 Jones on Evidence, 2015.

In addition to the testimony objected to, the mother of the deceased, Mrs. Wallace, testified that he was born September 14, 1897, and there is no objection urged to this, and there is really no dispute about his age.

Appellant also urges that the court erred in permitting witness .Cleveland Smith to introduce in evidence a diagram prepared by the witness. We do not think there was any error in admitting this diagram. We think it was sufficiently identified, and’ its introduction was not prejudicial.

It is also contended that the court erred in permitting Ella Wallace, mother of deceased, to introduce in evidence certain checks. The only purpose of introducing the checks was to corroborate the testimony of Mrs. Wallace that her son contributed to her support, and we do not think there was any error in admitting them.

Appellant also insists that there was no proof that the deceased suffered any conscious pain, and therefore nothing can be recovered for the estate. There is evidence that there were three slides, and that the first came up to his knees, and he called for help. The next slide came up to his waist, and the third covered him up and smothered him. The laborer who was working with him was also covered, but had raised his hands so that his fingers extended above the dirt. Of course, no one can tell what his pain and anguish was from the time the dirt caved in till his death. We can only imagine how awful it must have been. In deciding a case where one was thrown into the water and drowned, this court said: “Under the circumstances the finding that the pain and suffering were not merely incidental to the death, and that death from the injury was not instantaneous, is fully sustained. No one can conceive what awful agonies must have' been endured by Buff if he was conscious that death would be the inevitable result of his falling into the lake. The jury were justified in concluding that Buff, during the fall and after he struck the water, was conscious, and from that time until his death he endured pain.” St. L. I. M. & S. R. Co. v. Robertson, 103 Ark. 361, 146 S. W. 482. We think the jury were justified in this case in finding $1,500 for the estate.

The case was properly submitted to the jury, and the evidence is sufficient to support the verdict. Judgment is affirmed.


author: Kirby, J.

text:
    Eureka Oil Company v. Mooney.
    Opinion delivered March 14, 1927.
    1. Master and servant — propriety of directed verdict. — In an action for death of an employee, whose duty it was to go out on a plank over a pool of oil and clean an intake, and whose body was found in the pool, it was not error, in view of a conflict in the evidence, to refuse to direct a verdict for defendant.
    2. Master and servant — failure to-warn — instruction.—In an action for death of an employee found in an oil pool, an instruction that, after finding that deceased was youthful and inexperienced, he did not assume the risk of danger from fumes arising from the pool unless he knew of the same and appreciated the danger arising therefrom, or unless he was warned and instructed of such danger, was not error, since it only meant to tell the jury that, when the evidence disclosed that the employee was young and inexperienced and did not appreciate the danger, he did not assume the risk unless warned.
    3. Evidence — res gestae. — In an action for death of an employee, whose duty it was to "go out on a plank over a pool of oil to clean the intake pipe, and whose body was found in the pool, testimony that deceased, a few hours previously, explained his actions in staggering after cleaning the pipe by saying that he could smell gas, was not competent as part of res gestae.

      4. M-aster and servant — negligence—evidence.—In an action for the death of an employee, whose duty it was to go on a plank over a pool of oil to clean an intake pipe, and whose body was found in the pool, testimony that deceased, on one occasion, on arising from cleaning the pipe, staggered and almost fell from the plank, was competent testimony entitling the jury to draw reasonable inferences under the circumstances.
    5. Trial — general objection to statement.. — Overruling of a general objection to the entire statement of a witness was not error where part of his testimony was competent.
    Appeal from Saline Circuit Court; Thomas B. Toler, Judge;
    affirmed.

      Powell, Smead S Knox, for appellant.

      J. W. Westbrook and W. R. Donham, for appellee.
   Kirby, J.

This is the second appeal of this case, a statement of which can be found in the report of opinion on first appeal in 168 Ark. 479, 271 S. W. 321, which is the law of the case, of course, and will control here, the facts on this trial being substantially the same as on the former appeal. Wisconsin-Arkansas Lumber Co. v. Scott, 153 Ark. 65, 239 S. W. 391; Henry Wrape Co. v. Barrentine, 138 Ark. 267, 211 S. W. 366.

The court, in reversing the fiase, relative to an erroneous instruction on■ assumed risk, said: “It is true deceased had only been employed one day, but the danger from the work — such as there was — was immediately obvious and patent, unless, indeed, this danger was enhanced by the fumes from the oil. Any other danger was so obvious and patent that it was error to submit the question of deceased’s knowledge and appreciation of it,” and also held that the testimony was sufficient to send the question of appellant’s negligence being the proximate cause of deceased’s death to the jury.' It is insisted for reversal now that the court erred in admitting hearsay testimony, and in not directing a verdict for defendant. The case was tried by agreement on the samé record as made on the first trial, some additional witnesses being introduced.

A new witness for plaintiff testified that he had lived around the oil fields of Camden, El Dorado and Smack-over about four years; bad done practically all kinds of work in an oil field; had worked around oil wells- and oil fumes. He stated that there are fumes from the oil when it comes in from flowing wells that can be detected. Some men can stand to inhale the fumes and others cannot. Inhaling them produces shortness of breath to such an extent that, after 'a little while, they cannot stand up. The fumes are strongest right after the well is brought in, and continue strong so long as the well is flowing; had known two or three people to become overcome from gas from an open well flowing open in the air. It made them sick, and they just could not stand it. One of the wells where this occurred was a swabber, and the other an open well, both in the open in the El Dorado field. A swabber is a well where the gas pressure is not strong. enough to force the oil out. It is swabbed a few times, and the gas pressure is then strong enough to cause the oil to flow. Said that persons he knew to have been overcome by fumes were not in actual contact with the- oil, but some distance away, fifteen or twenty feet 'from the flow. The fumes make them sick, and some cannot stand it even in an open earthen storage,

Other witnesses testified that this well had to be swabbed; that the oil would go to the top -of the derrick, fall back to the ground, and run down to the dam across the ravine, 200 feet away; that the pool was two feet deep, and would overflow in about thirty minutes, if the suction pipe was not kept in continuous operation. The suction box or intake was about 2y2 feet from the dam, and a plank 12 inches wide and about 6 feet long projected out from the dam, resting on a cross-piece nailed to two stobs, the end of the plank being securely buried in the side of the dam. He and other witnesses stated there, would not be any fumes from the oil which could be smelled, but there would be no dangerous fumes, as it had flowed that far in the open air, fumes escaping when exposed to the air; that there were no fumes from the oil the day deceased was killed.

This witness stated that he was out on the plank several times the day the boy was killed, and. found it perfectly solid; that it was solid the next day, one end of the plank being buried in the levee or dam and the other on the cross-piece nailed to the stobs, and that this was the customary way of preparing a method to unstop an intake pipe, the only way it could be done.

Other witnesses testified that no dangerous gas fumes would arise from oil in an open container or pool like this one that had been exposed to the air in flowing to the top of the derrick and falling to earth on down to the dam; that sufficient fumes would not arise from it to overcome one, or cause him to lose his balance and fall from the plank, even though he had got down on his hands and knees and reached down into the oil to clean the pipe, bringing his face in close proximity with the 'oil. Some‘of these witnesses stated that'thé oil in the south field, where this pool is located, gave off no poison gas fumes at all.

.Appellant’s father, and administrator of his son’s estate, testified as on the first trial, and over like objections as to the competency of the testimony, that his son had only been working for the company one day before his death, although he had worked for the natural gas company before going to work for the defendant; that his son-went down and started the pump, and continued operating it until about 10 o’clock. The foreman came along and asked him how he was getting along, and he replied, “All right.” He then went out on the plank while the foreman was talking to witness, and the foreman passed on. The boy got down on his knees and was reaching down into the oil, cleaning out the suction-box on the pipe in the pool; that, when he got up, he came staggering like and nearly fell (Objection).

Objection being overruled, witness stated: “Anyway, he went out on the plank and cleaned this suction-box out, and then he straightened up, and I noticed him kind of staggering — -nearly fell off of the plank — and I asked him what was the matter, and he said he could smell the gas.” This testimony was all objected to.

Witness, about 5 o ’clock next morning, got up, and deceased had not come in; went to look for him; the pool was full of oil; noticed where deceased had eaten his lunch on some boards, and some one saying he must have fallen into the pool; took a stick and reached down into the oil, and discovered the body. The feet were towards the plank, the head out in the pool, lying on its face, as nearly as the witness could tell. His watch and $25.33 were in his pockets.

There was testimony tending to show also that the boy had been murdered, and that his skull was fractured, the latter fact being established by a post-mortem examination. One physician thought the line in the X-ray picture might not have been a fracture, and could have been a suture.

Appellant insists that, since the court held on the former appeal that the deceased assumed all risk of danger from his work, it being immediately and obviously patent, unless it was enhanced from the fumes from the oil, and that the undisputed testimony shows that no dangerous fumes would or could arise from such oil flowing into an open container like this pool, the court should have instructed a verdict in its favor, and especially that the court erred in giving instruction No. 3, relative to assumed risk.

It will suffice to say, however, that the testimony is not undisputed, one witness having sworn to the contrary, although the great preponderance of the evidence tends to show that no dangerous gas fumes would or could arise from the oil in the pool in which deceased was found dead, after it flowed out of the well and down to the dam; all poisonous fumes having escaped and been dissipated in the air. The court did not err therefore in refusing to direct a verdict, the testimony not being undisputed.

This instruction tells the jury that, after they found that deceased was youthful and inexperienced, he did not assume the risk of danger from fumes arising from the oil, “unless he knew of same and appreciated the danger arising therefrom, or unless he was warned and instructed of such danger. You are further instructed that, under such circumstances, the burden of showing such warning or appreciation -of the danger incident to such fumes is on the defendant.”

This instruction only meant to tell the jury that, when the evidence disclosed that the servant was young and inexperienced in the particular service, and did not fully realize and appreciate the danger, he did not assume the risk, unless warned thereof, and, under the circumstances, no error was committed in giving it.

It is next insisted that the court erred in admitting the testimony of deceased’s father, over objection of defendant, as follows: “Anyway, he went out on the plank and cleaned this suction-box out, and then he straightened up, and I noticed him kind of staggering— nearly fell off of the plank — and I asked him what was the matter, and he said he could smell the gas.”

This statement of deceased’s answer to his father explaining his action in staggering in rising after cleaning out the suction-box, “He could smell the gas,” was not incident to the cause of deceased’s death some hours thereafter, and could be no part of the res gestae. It did not attend and was in no wise immediately connected with any act causing the death of the deceased some hours thereafter. It had no connection with that fact at all, and could not have been a spontaneous declaration arising out of or connected with it. It was hearsay, and might have been prejudicial.

The statement of witness, however, that he had, some hours earlier, seen deceased, after rising from cleaning the suction-box, stagger and almost fall from the plank, was competent testimony, from which the jury were entitled to draw any reasonable inference under the circumstances, and, since the whole of the witness’ statement was objected to, and part of it was competent, and no special objection was made to that part of same being incompetent as hearsay, the court committed no error in overruling the general objection to the entire statement. St. L. I. M. & S. R. Co. v. Stroud, 67 Ark. 112, 56 S. W. 870; Redmon v. Hudson, 124 Ark. 26, 186 S. W. 312.

This is a doubtful case of liability, so far as the proof of negligence is concerned, but, having already held that there was sufficient testimony to send it to the jury, and the jury haying' found again, upon correct instructions and conflicting testimony, in appellee’s favor, and the record being free from prejudicial error, the judgment must be affirmed. It is so ordered.

Mbhaeev, J., not participating.


author: Mehaeey, J.

text:
    Hamilton v. Farmer.
    Opinion delivered March 14, 1927.
    1. L-ife estates — limitation.'—The statute of limitations does not begin to run against a remainderman until the life tenant’s death.
    2. Covenants — eviction.—An outstanding paramount title is not an eviction and does not of itself constitute a breach of the warranty in a deed.
    3. Mortgages — decree foreclosing lien. — A grantee purchasing the interest of a remainderman and executing a note and mortgage therefor was bound by the contract, and a decree foreclosing the lien in favor of the remainderman was correct.
    4. Covenants — warranty—eviction.—Generally, an eviction, to authorize an action for breach of a covenant of warranty, must be without the consent and participation of the grantee, and, if brought about through his fraud or collusion, or if he invites or does anything to bring about the assertion of a paramount title, the eviction is unavailable to him in such action.
    5. Covenants — breach of warranty. — A covenant of warranty in a deed is not broken until actual or constructive possession by paramount title is taken, as a mere outstanding title may never be asserted.
    6. Covenants — breach of warranty. — Where a remainderman did not undertake to assert title until invited to do so by the grantee, and did not claim any right to possession in the latter’s suit to. confirm title, and the court simply adjudged that he was owner of a twelfth interest subject to a life estate, there was no breach of the implied warranty of quiet enjoyment.
    Appeal from Craighead Chancery Court, Western District; J. M. Futrell, Chancellor;
    affirmed.

      T. A. Turner and Horace Sloan, for appellant.

      Basil Baker and N. F. Lamb, for appellee.
   Mehaeey, J.

The appellant, A. J. Hamilton, purchased the land in controversy from Thomas Gr. Fdster and wife on October 21, 1918. Foster had acquired title to the lands from Henry A. Armour and wife, and A. J. Hamilton alleges in his suit that the warranty in said deed from Armour and wife was breached by a paramount outstanding title, held by Doss Pierce, one of the heirs at law of Gr. A. Crisler, and that plaintiff had been evicted by being compelled to pay Doss Pierce the sum of $233 and costs for his interest therein.

It was .alleged in Hamilton’s complaint that the estate of Foster, who had died, was insolvent, and, for that reason, Henry Armour was made a party defendant. On October 17,1903, W. W. Crisler and Nancy A. Wallace conveyed the lands to said G. W. Armour, and that Henry Armour acquired title to said lands as an heir of G. W. Armour, deceased. The complaint alleges warranties in each of the conveyances and alleges a breach o‘f said warranties. The following stipulation was entered into:

STIPULATION AEEECTING BOTH CASES.

“It is hereby stipulated by and between the parties to the above entitled causes and their respective attorneys of record as follows:

“First: Said two causes may be consolidated.

“Second: The depositions and evidence heretofore taken and entered in both of said causes may be introduced in evidence upon the trial of said consolidated causes in so far as said evidence is competent, relevant and material, except a stipulation to which is attached papers purporting to be the letters written by one Hamilton, which stipulation and letters shall not be introduced in evidence, but, in lieu thereof, it is agreed that J. H. Hamilton mentioned in the proceedings and evidence is now living.

“Third: All deeds of record thereof pertaining to the real estate involved herein may be introduced in evidence.

“Fourth: All orders, decrees, proceedings and evidence in a cause where A. J. Hamilton was petitioner and A. J. Hamilton against Doss Pierce et al., pending in this court, in which said Hamilton sought to confirm title to the real estate involved herein and to cancel the title of Doss Pierce thereto, may be introduced in evidence by either party.

“It is further stipulated and agreed that the two written instruments pleaded in the answer herein as having been executed by James H. Hamilton were in fact executed and delivered by him for the consideration mentioned therein at the date alleged; that, while no real estate is specifically described in- either of said instruments, yet the same have reference to the real estate involved in this suit, and were intended to include and convey any interest in said real estate which said James H. Hamilton may have had, -and that said two instruments may be introduced in evidence as conveyance by said James H. Hamilton of any interest he had or claimed to have in the estate of said Gr. A. Crisler, including the real estate involved in this suit.

“Fifth: That the amount paid by plaintiff, to-wit, $233, was a reasonable consideration, if plaintiff is to recover in said cause, and that attorney’s fee of $100 is not excessive, and shall be considered a fair charge and payment in said cause, along with costs, in matter of Hamilton v. Pierce, Craighead Chancery Court, No. 2107.

“It is further agreed that Gr. A. Crisler died seized of the real estate involved in this case, leaving surviving him W. W. Crisler, Nancy E. M. Wallace, -Ellen Pierce and Pinky Hamilton, as sole heirs at law of G-. A. Crisler.

“That, at the time of G-. A. Crisler’s death, James H. Hamilton and Pinky Hamilton were married, and, as the result of said marriage, one child was born alive, and that the death of Pinky Hamilton occurred prior to the cleath of Ellen Pierce, who, at the time of her death, had two children, one of whom has since died, leaving Doss Pierce her sole remaining heir, and who, as such, inherited a one-twelfth interest in the property herein described.”

Testimony was introduced to the effect that W. W. Crisler and Nancy Wallace executed a deed to the land in controversy to G-. W. Armour. W. W. Crisler was one of the heirs of G-. A. Crisler, his other heirs being Mindy Wallace, Ellen Pierce, and Pinky Hamilton. Pinky Hamilton, before her marriage, was Pinky Crisler.

The testimony shows conveyances down to the conveyance to appellant by Foster, and, as stated by appellant in his brief, there are two principal questions. First, was there a breach of the covenants of warranty? The chancellor found that there was a breach of warranty, because Doss Pierce had asserted his right to one-twelfth interest in the land in court. Under the decisions of our court, of course, he could not have maintained a suit for possession until after the death of the life tenant, because his cause of action would not have accrued during the lifetime of the life, tenant. We think that Doss Pierce was not barred by the statute of limitations and that he would have had a cause of action after the death of the life tenant, but he did not undertake to assert it until the appellant himself had begun a suit to confirm his title, and it is perfectly clear from the record in the case that he knew that Doss Pierce owned a one-twelfth, interest. But an outstanding paramount title is not an eviction, and does not of itself constitute a breach of the warranty; but appellant, having purchased the interest of Doss Pierce and executed a note and mortgage therefor, was bound by this, contract, and the judgment or decree against the appellant foreclosing the lien in favor of Doss Pierce was unquestionably correct. The next and most difficult question, however, is whether plaintiff would have a cause of action against the grantors for a breach .of warranty, and the first question to be decided is, did his own conduct disentitle him to recover damages against the grantors?

The record indicates that the appellant himself had lived in the community a long while, and knew the parties, and knew that Doss Pierce was an heir to some portion of the estate; but, as we have already said, the existence of this paramount title itself would not constitute an eviction nor entitle the appellant to bring suit against the grantors. It is generally held that an eviction, in order to be effective as a basis of an action for breach of covenants of warranty, must be without the consent and participation of the grantee. Any eviction brought about through either the fraud or collusion on the part of the grantee will be unavailing to him in an action against the grantor for damages for a breach of warranty. AVe think that a grantee cannot invite or do anything to bring about the assertion of the paramount title and thereby an eviction, and then recover damages against the grantors. Doss Pierce might never have asserted his title. The eviction must be by title paramount to constitute a breach, for a collusive eviction is of no force or effect in an action for a breach of warrants Frix v. Miller, 115 Ala. 476, 22 So. 146, 67 Am. St. Rep. 57.

In a case in the Court of Appeals in Kentucky it appeared that one Thomas Vincent sold to A. J. Hicks a certain tract of land in Hickman County, Kentucky, and executed and delivered a deed to him, with covenants and general warranty therefor. Subsequently a suit was instituted against Hicks to recover about 22 acres of land, and a judgment was entered against Hicks for its possession. Hicks thereupon brought suit against the grantor for a breach of warranty, and the following agreement was signed:

“It is agreed that the judgment in favor of Maxwell and others against A. J. Hicks, in the Hickman Circuit Court, was and is an agreed judgment based on the value of the said 22 acres of land and the rents of same, and the value of said land and rents thereof were reasonably worth the amount said Hicks agreed to pay Maxwell et al., and said agreed judgment was agreed to between said parties several days before said Hickman court convened, and the same was based on the facts found in the depositions of said case of Maxwell et al. v. Hicks. It is also agreed that the facts in said depositions were not at any time submitted to s'aid court. It is further agreed that a certified copy of the deed from Maxwell et al. to Hicks shall be read here, in this action as evidence.”

The court said, after quoting said agreement:

‘ ‘ This agreement • shows that the judgment was entered as a result of an agreement between the Maxwells and the Hicks, and fully supports the averment of the answer in regard thereto. The deed referred to in the agreement was in evidence, and shows that, previous to the judgment, Maxwell, for a recited consideration, conveyed the 22 acres to the appellee, Hicks. Was there an eviction as contemplated by law? There can be no action maintained for a breach of warranty in a case like this until the vendee has 'been regularly evicted by a judgment of a court of competent jurisdiction. * * * The appellant was not bound by any agreement which Hicks and Maxwell made with reference to the land, neither was he bound by the judgment which was entered as a result of the agreement. Prom the facts admitted in this record, the appellees were not entitled to maintain this action for the alleged breach of warranty.” Vinson v. Hicks (Ky.), 64 S. W. 456.

It has been said: “An eviction brought about by collusion would not sustain the action for breach of covenant, nor could the plaintiff recover any damages which could have been prevented or avoided by reasonable diligence on his part, and he owed a duty to the defendant to so conduct himself as to make the damages as little as possible.” Jenkes v. Quinn, 137 N. Y. 223, 33 N. E. 376. The chancellor in his opinion said: “This leaves for consideration the express warranty, on which little need be said. This warranty, reduced to its final analysis, is a promise to protect possession. This covenant is not breached until there has either been an actual or eon-structive eviction by paramount title. An outstanding paramount title is not sufficient, for it may never be asserted.”

We think the chancellor was correct; that Doss Pierce might never have asserted his title. But appellant insists that the chancellor overlooked the fact that there is an implied warranty of quiet enjoyment. The lower court, however, did not overlook this, we think, and did not hold that this warranty was broken when made, but held' that Doss Pierce had no right to. possession and could not assert any right to possession until the death of Hamilton, who had a life estate. He not only did not undertake to assert any title until invited to do so by appellant, but he did not in the suit claim, and the chancellor did not find, that he had any right to possession; The chancery court simply adjudged that he was the owner of a one-twelfth interest, subject to the life estate of Hamilton. This judgment gave Pierce.no more right than he already had, and we think that, while there may be a constructive eviction which will justify a suit by the grantee for damages, there was no such eviction in this case. The life tenant may have had a right to interfere with the possession, but Pierce did not. As we have already said, one cannot invite or bring about the assertion of a paramount title and thereby bring about an eviction and -then bring suit against his grantors for eviction. ’

Finding no error in the decree of the chancery court, it is affirmed.