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Commission, in force at the time of the ship-1 Appeal from Cleburne Chancery Court; ment, was 1342 cents per hundred pounds. Geo. T. Humphries, Chancellor. It was held by the trial and Supreme Courts

Action by the Inland Construction Comof Kentucky in that case that the railroad

pany against S. B. Rector and others, Comwas responsible to the Henderson Elevator

missioners of Waterworks and Sewer ImCompany for any loss sustained by it

provement District No. 1 of Heber Springs, brought about by the railroad company's

Ark. From decree for defendants on their failure to have posted or on file in its office

cross-complaint, plaintiff appeals. Affirmed. in Henderson, Ky., its freight tariff rate in question or on account of a misquotation of Rose, Hemingway, Cantrell & Loughborsaid freight tariff rate by its agent. Mr.ough, of Little Rock, and Lemuel H. Doty, Chief Justice White, in reviewing the case, of Memphis, Tenn., for appellant. said for the Supreme Court of the United Geo. W. Reed, of Heber Springs, and WilStates :

liams & Seawel, of Yellville, for appellees. “It is to us clear that the action of the court below in affirming the judgment of the trial

McCULLOCH, C. J. This is the reappearcourt, and the reasons upon which that action was based, were in conflict with the rulings of

ance here of a case reported in 202 S. W. this court interpreting and applying the act to

712, where the facts are fully set forth. We regulate commerce. New York Cent. R. R. v. decided, when the case was here on the United States (No. 2) 212 U. S. 500, 504 [29 former appeal, that appellant had not comSup. Ct. 309, 53 L. Ed. 624]; Texas & Pacific plied with its contract with appellee, an R. R. Co. v. Mugg, 202 U. S. 242 [26 Sup. Ct.

improvement district for the construction 628, 50 L. Ed. 1011); Gulf Railroad Co. v.

of waterworks and sewers in Heber Springs, Hefley, 158 U. S. 98 (15 Sup. Ct. 802, 39 L. Ed. 910). That the failure to post does not prevent.

with respect to the construction of the two the case from being controlled by the settled rule

concrete storage reservoirs provided for in established by the cases referred to is now be the contract, and with respect to certain yond question. Kansas City So. Ry. Co. v. other items in the contract, and we reversed Albers Comm. Co., 223 U. S. 573, 594(a) [32 the decree and remanded the cause with diSup. Ct. 316, 56 L. Ed. 556].”

rections to the court to ascertain the addi

tional cost of complying with the contract Following the case of Illinois Central Railroad Co. v. Henderson Elevator Company,

in those respects and to render a decree in

favor of appellee for the amount so found. supra, the judgment in the instant case must

In announcing the findings of fact and in be reversed. It seems that the case has been

declaring the law applicable thereto, we fully developed, and, under the undisputed

said : facts, appellant is entitled to recover a judgment of $53.60, with interest thereon at the "There is a conflict in the testimony as to rate of 6 per cent. per annum from the date whether it is really necessary to use reinforcof the shipment until paid, for undercharges

ing material of that kind, and whether or not in freight charges on five carloads of lum

the use of ordinary fencing wire was sufficient

to give the floors and walls of the reservoirs ber shipped from Calico Rock to Springfield,

sufficient strength. Some of the engineers who Mo.

testified on the subject say that concrete work Accordingly, the judgment is reversed, and of that kind will not withstand the required the clerk is directed to render judgment here pressure without being reinforced as specified in favor of appellant against appellee for in the contract, while others say that the use said amount.

of the wire is just as good. Conceding that it is very uncertain that the concrete work will prove to be defective on account of the use of insufficient reinforcement, and that it may

fully serve the purposes intended and afford INLAND CONST. CO. v. RECTOR et al., safe receptacles for the water to be stored from Com'rs. (No. 22.)

year to year, still the improvement district con

tracted for the use of a certain kind of material, (Supreme Court of Arkansas. Dec. 9, 1918.)

and it is no answer to say that something has APPEAL AND ERROR 1099(3) - LAW OF

been furnished which may prove to be just as CASE-OPINION ON PRIOR APPEAL.

good and sufficient for the purpose. Where

there is a specific agreement for the use of cerDeclaration on appeal in contractor's suit

tain kind of material, a contractor has no right for construction of reservoirs, water district

to depart from that specification on the ground counterclaiming for breach, that contractor

that he is furnishing something just as good. could not escape liability though its departure

In other words, the contracting party is en

in from contract resulted in work as good as spec

|titled to have what he calls for in his contract. ified, etc., together with directions given tri- The

The substitution of reinforcing material was, al court on reversal merely to ascertain cost

according to the testimony, a substantial deof reconstructing work, held law of case on sec

parture from the specification of the contract, ond appeal, not to be departed from.

and that departure from the contract was enWood and Smith, JJ., dissenting.

tirely unauthorized.”

form for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

207 S.W.-3

Directions to the lower court on the re- bility even though its departure from the mand of the cause were given in the fol. contract resulted in work which was equallowing language:

ly as good as that specified in the contract, “The decree will be reversed, but we are un- and that reinforcing material used constitutable to ascertain from the testimony the cost ed a substantial departure from the terms of reconstructing the two storage reservoirs, of the contract, and we reversed the cause and of constructin the cover for the Imhoff with directions to the lower court to ascertank and the other items specified above as not tain the cost of reconstructing the work as being in compliance with the contract, so it specified in the contract. will be necessary to remand the cause for fur

It is unnecessary to cite authorities to ther proceedings. It is ordered that the decree show that this court is bound by its former be reversed, and the cause remanded, with directions to hear further proof as to the cost decision in the same case, which has become,

We did of completing the contract with respect to the so to speak, the law of the case. items mentioned above, and to enter a decree not remand the cause for new testimony on in favor of appellees against appellants for the issue whether or not the contract had the amount of such cost after allowing appel- been complied with, nor as to what it would lants credit for the balance due on the contract cost to substitute some other form of work prices."

which would be equally as good as that speci

fied in the contract; but we confined the isOn the remand of the cause, the court sue on the further hearing to the ascertain. heard additional testimony and found that ment as to what the cost would be of comthe cost of tearing down and reconstructing pliance with the contract as defined in the the two reservoirs' would be the sum of $8,- former opinion. 480, and rendered a decree against appellant The chancery court followed those direcaccordingly, after allowing such credits tions on the remand of the cause, and the which we decided on the former appeal that decree is in accordance with the prepondthe latter was entitled to. We declared in erance of the testimony. the former opinion that the contract had not The decree is therefore affirmed. been complied with and gave directions to the lower court to ascertain the cost of com- WOOD and SMITH, JJ., dissent. pliance and to render judgment in accordance with the findings. What was said in the former opinion, together with the directions given therein, constitutes the law of the case, and we are not at liberty to de

BAILEY & CO. V. SOUTHWESTERN part from it now on the second appeal.

VENEER CO. et al. (No. 28.) Appellee directed its proof entirely to the issue as to the cost of reconstructing the (Supreme Court of Arkansas. Dec. 9, 1918.) reservoirs in accordance with the contract, BILLS AND NOTES 70 ACCEPTANCE OF and the proof thus adduced was sufficient to

BILL-DESTRUCTION BY PAYEE. show that it would cost the sum of $8,480 to

Under Negotiable Instrument Act, $ 132, do the work. The testimony introduced by providing that drawee who destroys a bill will appellant also shows that the cost of tear- be deemed to have accepted the same, drawee ing down the old reservoirs and rebuilding upon willfully destroying bill which he had not new ones in accordance with the terms of the accepted in writing was liable thereon, regardcontract would cost $8,480, or more; but ap- less of whether he had verbally accepted bill. pellee also introduced expert witnesses whose testimony shows that there could be Appeal from Circuit Court, Woodruff Counconstructed around the old reservoirs at a ty; J. M. Jackson, Judge. cost of $2,950 concrete belts properly rein

Action by Bailey & Co. against the Southforced which would make the tanks as serv- western Veneer Company and another. iceable and durable and as useful for the Judgment for defendants, and plaintiffs appurposes specified in the contract as if the peal. Reversed and remanded. same had been originally constructed in the

See, also, 200 S. W. 280. manner specified in the contract. Learned counsel for appellant now insist that that

Jonas F. Dyson, of Cotton Plant, for approof is undisputed and that, since the ex- pellants. penditure of the sum of $2,950 would construct reservoirs equally as serviceable and SMITH, J. Bailey & Co., the appellants, durable as those specified in the contract, by this suit seek to charge the Veneer Comthe measure of recovery should be limited to pany as acceptors of an inland bill of exthat sum. The difficulty with that conten- change. It is not contended that the accepttion is that it is in the face of the law as ance was in writing, as required by section declared by this court on former appeal. We 132 of the Negotiable Instrument Act (Acts said, in effect, when the case was here be- 1913, p. 260). But it is insisted that after fore, that appellant could not escape lia- the bill was verbally accepted it was willfully destroyed. Upon a former trial a ver-, ing to follow foreman between bull wheel and dict was directed in favor of the Veneer insecurely stacked pile of lumber, thereby catchCompany, which was reversed by us upon ing his hand between bull wheel and cable, held appeal. Bailey & Co. v. Southwestern Veneer for the jury. Co., 126 Ark. 257, 190 S. W. 430.

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. MASTER AND SERVANT 293(5) SAFE The opinion in that case recited the facts PLACE TO WORK-QUESTION FOR JURY-INto be that the testimony showed an oral STRUCTIONS. acceptance and the unexplained destruction An instruction that if plaintiff, a 16 year old of the bill of exchange, and the opinion ap-boy, was injured by being "led into a place of plied the law to the facts of that case.

But unsafety” by his foreman, where there was a apon the remand and retrial of the cause defective condition "in close proximity” to a the court below interpreted our opinion to bull wheel over which passed a cable, then plain

tiff would be entitled to recover, was defective in mean that there must be both a verbal acceptance and a willful destruction of the bill not submitting the issue of negligence. to fix liability thereon, and so charged the 4. MASTER AND SERVANT Cm 270(10) Evijury. This was error, and the judgment

DENCE-MATERIALITY. must be reversed on that account.

In action by seryant for injuries claimed to The opinion on the former appeal recog- bave been caused by toppling over of piled lumnized the fact that a verbal acceptance was ber, thus forcing plaintiff against bull wheel, it not sufficient, as the statute so provides, but was error to admit evidence that floor was cup

ped up and uneven; there being no evidence it was pointed out that the statute also pro that plaintiff stumbled or fell by reason of convides that the drawee who destroys a bill will dition of floor. be deemed to have accepted the same. In the former opinion we said:

Appeal from Circuit Court, Saline County; "An accidental destruction of the bill could W. H. Evans, Judge. not amount to an acceptance, but a willful

Action by Simon Brame, by his next friend destruction of the bill would. Under all the circumstances in this case, we are of the opinion and father, Major Brame, against the A. J. that the question of fact as to whether the Neimeyer Lumber Company. Judgment for order was destroyed should have been submitted plaintiff, and defendant appeals. Reversed to the jury under proper instructions.". and remanded.

At the trial from which the present ap- Buzbee, Pugh & Harrison, of Little Rock, peal is prosecuted, there was testimony to for appellant. the effect that appellee had agreed to accept 0. H. Winn, of Little Rock, and W. D. the order only to the extent to which it was Brouse, of Benton, for appellee. indebted to the drawer of the bill, that sum being less than the face of the bill, and MCCULLOCH, C. J. The plaintiff, Simon that after this limited acceptance the bill Brame, asserts that he was employed by the was accidentally lost by it. As this accept- defendant, A. J. Neimeyer Lumber Company, ance was not in writing, the cause should to work in the latter's lumber mill near have been submitted only on the question of Little Rock, and that while performing serythe intentional destruction, but the right to ice in the course of the employment he rerecover upon a finding that the bill had been ceived personal injuries, caused by the negwillfully destroyed should not have been con- ligence of defendant, and he instituted this ditioned upon the additional finding that it action by next friend against the defendant had also been verbally accepted.

to recover compensation for his injuries. Reversed and remanded.

The defendant, in its answer, denied that the plaintiff was in its employment at the time of his injury, or that there was any

negligence on the part of the company which A. J. NEIMEYER LUMBER CO. v. BRAME. caused or contributed to the injury, but that (No. 23.)

plaintiff's injury resulted from his own negli

gent acts while loitering about the mill shed. (Supreme Court of Arkansas. Dec. 9, 1918.)

Defendant also pleaded assumption of risk 1. MASTER AND SERVANT Cw286(10)—INJU- on the part of the plaintiff, which prevented


Plaintiff's injury occurred by getting his In an action by servant for injuries occa- hand caught between a wire cable and the sioned by catching hand between cable and bull wheel over which it revolved. The injury wheel, whether master was negligent in the pil was a severe one, and the jury awarded daming of lumber in the vicinity held for the jury. ages in a very substantial amount. The wire 2. MASTER AND SERVANT 288(11)-ASSUMP- cable was part of a system used in conveying TION OF RISK-QUESTION FOR JURY.

lumber from the dry kiln to the dry shed, In an action by boy of 16 for personal inju- fo: the purpose of distributing the lumber ries, whether plaintiff assumed risk in attempt in the stalls. The shed is about 600 feet

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Iudexen

long, and the cables run the full length there-, making the passageway between the front of of. The bull wheels, over which the cables the stalls and the cable platform unsafe by revolve, are situated at the extreme end of stacking lumber there insecurely. If, as conthe shed away from the dry kiln. There are tended by plaintiff, the stacks of lumber were four cables in each system, several feet loosely piled and high enough to be struck apart, and the lumber is loaded on these by pieces of timber conveyed by the cables, cables and conveyed through the shed, and and that this rendered the narrow passageunloaded, as it passes through, for the pur- way between the piles of lumber and the capose of putting it in the stalls. There are ble platform unsafe for the use of employés two sets of the cables, each set containing in discharging their duties, then it would four cables, and one set is used for carrying warrant the jury in finding that there was off two-inch lumber, and the other set for negligence in this respect, which entitled carrying off one-inch lumber. The stalls for plaintiff to recover if his injury occurred in the lumber under the shed face the sides of the way in which he described it. the set of cables used in conveying the lum- There are numerous assignments of error ber; there being a space of several feet be- with respect to the rulings of the court in tween the edge of the platform, along which giving instructions at plaintiff's request, and the cables run, and the front of the stalls. we are of the opinion that several of those

The contention of the plaintiff, supported assignments are well founded. The following by his own testimony, is that he was walking instructions were given at plaintiff's request, along between the cable platform and the and over defendant's objection: stalls, when a large piece of timber, being "(1) If you find from the evidence that Isaiah passed along by the cable, struck a pile of Williams employed Simon Brame, and, after lumber, about four feet high, lying against such employment, the plaintiff was injured on the front of the stalls, and knocked down account of negligence on the part of the emthis pile of lumber, which struck plaintiff ployés of defendant, or their failure in using and pushed him over against the bull wheel, reasonable care to provide a reasonably safe and that in this way his fingers were caught upon his work, then you will find for the plain

place in which plaintiff was to work, or enter between the cable and the rim of the wheel. tiff. Plaintiff testified that he had been working “(2) If you find from the evidence that defecin other parts of the mill, but on the day the tive conditions existed in close proximity to the injury occurred he was laid off by his fore- bull wheel, and thereby was the direct and proxman, and was later employed by the shed imate cause of injury to the plaintiff, and if you foreman, who directed him to act as water find that he was under the instructions, orders, boy, and that he was walking down through was led into a place of unsafety, and was there

or commands of the foreman or boss, plaintiff the shed under the orders of the foreman; by injured, it is your duty to find for plaintiff. the latter walking down the passageway "(3) If you find from the evidence that plainabout 25 feet ahead of him. The allegation tiff was obeying his foreman or boss, and was of the complaint is that the defendant was tripped or thrown by a piece of timber, which negligent in laying insecure piles of lumber moved suddenly into the path of travel of plainin front of the stalls, thus narrowing the tiff, which he could not have reasonably known

was about to trip him, or fall against him, or passageway between the piles of lumber and the cable, and that the injury was caused by against him, and he was thereby injured, you

was negligently piled in plaintiff's path, and fell reason of the insecurely piled lumber, which will find for the plaintiff.” toppled over when struck by the piece of "(5) If you find from the evidence that the lumber being conveyed along the cables. The plaintiff's path of travel and the place of work testimony shows that plaintiff was a boy of the plaintiff was obstructed by lumber being about 16 years of age, but had been working carelessly and negligently stacked, and the duat the mill for some time.

ties of the plaintiff to his master required him The contention of the defendant is that ber, and by reason of the improper manner in

to pass by, in, and about the overstacked lumplaintiff was not employed at all at the mill which said lumber was piled or stacked, if you that day, but had been laid off from his work, find it was carelessly and negligently stacked, and was loitering in the dry shed, and was fell against and threw or knocked the plaintiff amusing himself by riding the cables, when against said lumber, causing him to be thrown he fell, and his hand was caught in between into the said dangerous machinery operated neglithe cable and the rim of the bull wheel. gently, without care and without protection, if

[1] There is a general allegation in the you find it was negligently operated, which recomplaint that the machinery was defective, find for the plaintiff.”

sulted in the injuries to the plaintiff, you will but we think that there is no proof to sustain that allegation. It is earnestly insisted by [2] Instruction No. 1 was erroneous in excounsel for defendant that the proof does not cluding the question of assumed risk. Plainsustain any of the allegations of negligence, tiff was a boy about 16 years of age, but but after careful consideration we are of the he had been working at the mill a consideraopinion that there was sufficient testimony ble length of time, and was familiar with the to warrant a submission to the jury of the situation and the methods of work there. charge of negligence of the defendant in | The piles of lumber under the dry shed and

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the passageway between them and the cable ed down, or thrown down, by the force of platform were things that were open and the pile of falling lumber. The court erred, obvious to the plaintiff as he passed along therefore, in admitting the testimony, and in through the shed, and, according to the set- refusing to give the instructions excluding it tled principles of law, notwithstanding his from the consideration of the jury. youth, if he was fully aware of the situation For the errors indicated, the judgment is and appreciated the danger, he is deemed to reversed, and the cause remanded for a new have assumed the risk, Arkansas Midland trial. Ry. Co. v. Worden, 90 Ark. 407, 119 S. W. 828. The state of the testimony was such that the jury might have found that the plaintiff assumed the risk, and that question BROWN et al. v. McGEHEE. (No. 31.) should not have been excluded from the consideration of the jury, as was done by the (Supreme Court of Arkansas. Dec. 9, 1918.) court in instruction No. 1, which told the

1. SALES ww52(7) REPRESENTATIONS jury, in substance, that if the plaintiff was SELLER-EVIDENCE. employed by the defendant and received in.

In an action on the purchase-money note of juries by reason of the negligence of the de an automobile and to foreclose a mortgage sefendant in failing to exercise care to provide curing it and to enforce a vendor's lien on the a reasonably safe place, the defendant would car, evidence held to show that the seller inbe responsible for the injury.

duced the purchaser to buy the automobile on [3] Instruction No. 2 was open to the same tion and fit for service, whereas the car was

false representations that it was in good condiohjection, but it is also erroneous, in that it

worthless. permits a finding against the defendant with

REPRESENTATIONS out negligence being proved. It tells the 2. SALES Cw38(2) jury in substance that if plaintiff was in

SELLER-CONDITION OF PROPERTY SOLD. jured by being "led into a place of unsafe

Where the purchaser of an automobile had ty," where there was a defective condition no knowledge of cars and so informed seller of

secondhand machine, the se was bound by "in close proximity to the bull wheel,” then his assertion that the car was in good condithe plaintiff would be entitled to recover, and tion and fit for the livery business, whether or the instruction does not submit the issue of not he knew it was worn out and worthless. negligence to the jury at all.

Instruction No. 3 is also open to both of Appeal from Crawford Chancery Court; the objections just referred to. It omits all W. A. Falconer, Chancellor. reference to the question of assumption of risk, and also allows recovery by the plain-J. Brown and another. Judgment for plain

Action by J. F. McGehee against Francis tiff without proving negligence. It tells the jury that, if plaintiff was obeying his fore

tiff, and defendants appeal. Reversed, with

direction. man and was thrown down by a piece of timber which moved suddenly into his path J. E. London, of Van Buren, for appellants. of travel, his right to recover was establish- Starbird & Starbird, of Alma, for appellee.. ad, even though there was no negligence. Instruction No. 5 is erroneous in failing to

HUMPHREYS, J. Appellee instituted suit submit the question whether or not plaintiff in the Crawford chancery court on Novemwas employed to work at the mill that day. ber 27, 1917, against appellants, to recover The answer tendered an issue on that point, judgment on a note for $600 and interest, exand there was a sharp conflict in the testi- ecuted by them on May 6, 1916, for the purinony. This instruction was also erroneous, chase price of an automobile; to foreclose in ignoring the question of assumed risk. a mortgage given on a lot in the town of

Other instructions were open to the same Alma, Ark., to secure payment of the note; objections as herein set forth, but it is un- and to enforce a vendor's lien on the autonecessary to make further reference to them. mobile for any balance due after subjecting

[4) Testimony was introduced over the ob- the lot to the payment of the debt. jection of defendant tending to show that the Appellants filed answer and cross-bill, in floor around the cable platform and bull which they admitted the purchase of the auwheel was cupped up and uneven, and de tomobile and the execution of the note and fendant requested the court to give an in- mortgage; but set up as a defense thereto, struction excluding that evidence from the and for affirmative relief thereon, that the consideration of the jury, on the ground that note and mortgage were obtained by appellee there was nothing to show that it had any through the fraudulent misrepresentation of thing to do with plaintiff's injury. We think the condition of the automobile sold to theni that this assignment of error is well founded, and the purposes for which it could be used. for the testimony of plaintiff does not show The cause was heard upon the pleadings that he stumbled or fell by reason of the and evidence, upon which a judgment was condition of the floor, but that he was knock- rendered against appellants for $600 with

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