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interest thereon at the rate of 10 per cent., coasting down a hill one was liable to wrench per annum from the 6th day of May, 1916; an axle, regardless of whether the axle was a lien was declared upon the lot and automo- new or old; that the car was not in condibile, and a sale thereof ordered to satisfy | tion at any time after he became acquainted the judgment. From this decree and order with it to be used as a service car; that the ‘of sale, an appeal has been prosecuted anä сar was practically worthless for a livery is now before us for trial de novo,

business because it was an expense rather The testimony, in substance, was as fol- | than a profit. lows:

Jesse Spelce testified that he was Walter Brown, one of the appellants, tes- quainted with the car before and after the tified that appellee approached him in the sale; that it was in their garage, both before spring of 1916 and offered to sell an automo- and after the sale, for repairs; that after it bile to him for the purpose of hauling freight was sold to Walter Brown it broke down and and passengers; that appellant did not know was brought to the garage for repair. anything about an automobile, and so in- Harley Early testified that he drove the formed appellee; that appellee then informed car several times when each party owned it; him that the car was all right and just what that the axle broke once and he had trouble he needed in his business; that he had con- with it another time; that, so far as he fidence in appellee and bought the automobile knew, the car was all right when appellee upon appellee's representation that it was owned it. all right and fitted for use as a service car; Bert Dukes testified that he was acquaintthat he began to use the car and had trou- ed with the car appellee sold to appellants; ble with it almost every time he took it out; that he worked on it soon after it was sold to that he was careful in the use of it and did appellants by appellee; that he thought the not overload it; that it was a six-passenger car broke down on account of being overcar, and he never hauled over six men in it loaded; that he saw it go by the shop on one at a time; that the expense of keeping up occasion with nine parties in it; and that he repairs on it was more than the profit de- thought the car was all right when Walter rived from its use; that it was nothing but Brown bought it. Ed Dukes testified that he a pile of junk, and he finally had to put it fixed the car twice for Walter Brown after in the barn and quit using it; that, as soon he purchased it; that he thought Walter did as he discovered it was of no value, he in- not know how to run it, and on that account formed appellee, whereupon appellee offered got it out of fx. him $100 for the car. Mrs. Francis J.

[1, 2] We think it established, by the weight Brown, one of the appellants, testified that of the evidence from the record thus sumher husband, who was engaged in a livery marized, that appellee induced appellants to business, died suddenly; that she and her buy the automobile upon the representation sons continued the business; that she was that it was in good condition and fitted for informed by one of her sons that it was nec-service as a passenger and freight car; that essary to buy an automobile to compete with the car was worthless for a service business the other liverymen and that appellee would at the time the sale was induced. According sell them a good automobile on time; that to the testimony of appellants and other witshe then signed the note and mortgage with nesses, the car had been worn out at the time her sons; that the car was not worth any of the sale so that it could not be repaired thing; that it cost more to keep it in re- for service. The fact that appellee offered pair than they took in on it; that it was an appellants $100 for the car when appellants espense from the first day; that the car is discovered its true condition is a strong standing in the stable and will not run at circumstance tending to show that it was an all; that, had she known it was worn out, old piece of junk at the time the sale was inshe would not have signed the note and mort duced. At the date of trial, appellee advancgage.

ed the theory that the car had been rendered W. A. Tackett, automobile mechanic of worthless by the ca reless, reckless use and long experience and employed in a service driving of Walter Brown and those permitgarage, testified that he attempted to repair ted to use it. It is noticeable that appellee the radiator which was leaking in October, himself refrained from testifying. The tes1916, but was never able to repair it; that timony of Ed and Bert Dukes way to the the car was worn out and run down general- effect that they repaired the car several ly; that he was never able to repair it so times for Walter Brown, and the trouble was that it would make a successful trip; that caused, in their opinion, from a lack of the car had to be repaired practically every knowledge in the use of it and by overloadtime it was taken out; that he himself at ing it.

Outside of seeing nine men in the tempted to make three different trips with car on one occasion, which was disputed by it, and it broke down each time on good Arthur Brown, the evidence of the Dukes as ronds or streets; that the gearing was worn to what caused the injury rested on opinion so that in taking up the lost motion after only. We do not think the evidence of Ed and Bert Dukes is sufficient to either over- 12. INNKEEPERS 11(12)-GUEST'S PROPERcome or equalize the evidence of appellants TY-LIABILITY-JURY QUESTION. and other witnesses, which was to the effect In action to recover for property stolen that the car was in bad condition and un- from guest's room, evidence held sufficient to fitted for a service car at the time appellee in- go to jury on the issue of the innkeeper's negduced the sale by representing that the car

ligence. was in good condition and the very car need

Appeal from Circuit Court, St. Francis ed for the livery business. The representation made was material to the contract and induc

County; J. M. Jackson, Judge. ed the sale. Appellee asserted as a fact that Action by C. W. Weitzel against B. L. Turthe car was in good condition and fitted for ner in the justice court. Upon appeal to the use as a service car. Appellant Arthur Brown circuit court judgment was rendered for had no knowledge of cars, and so informed ap- plaintiff, and defendant appeals. Reversed, pellee. Under these circumstances, appellants and remanded for new trial. had a right to reply upon the representation made concerning the condition of and the

J. W. Morrow, of Forrest City, for apuse to which the car might be put, and ap

pellant. pellee was therefore bound by his assertion that it was in good condition and fitted for

McCULLOCH, C. J. Appellee was a tranthe livery business, irrespective of whether sient guest at appellant's hotel in Forrest he himself knew that it was worn out and City, Ark., on November 30, 1917, and afterworthless. Evatt v. Hudson, 97 Ark. 268, wards instituted this action against the latter 133 S. W. 1023; Jarratt v. Langston, 99 Ark. to recover the value of certain of his wearing 438, 138 S. W. 1003; Brown v. Le May, 101 apparel which it is alleged was stolen from Ark. 95, 141 S. W. 759; Bank of Monette v. his room in appellant's hotel on the day menHale, 104 Ark. 388, 149 S. W. 845; Stewart v. tioned above. The action originated before a Fleming, 105 Ark. 37, 150 S. W. 128. justice of the peace, but was tried before a

Appellants offered to return the car, and jury in the circuit court on appeal, and, aftprayed for a return of the note and cancella- er all the testimony was introduced, the tion of the mortgage and for damages result- court gave a peremptory instruction in favor ing to their business on account of the of appellee, worthless condition of the car. The loss of The testimony shows that appellee was, profits to the business on account of the as before stated, a transient guest at appelworthless condition of the car is not cer, lant's hotel on the day named and several tainly and definitely established by the evi- days prior thereto, and that between the dence. Appellants could have prevented hours of 3 and 5 o'clock p. m. appellee's weardamage to their business by the purchase of ing apparel, a suit of clothes, an overcoat, a another car, and no good reason is assigned hat, a pair of shoes, and a suit of underwear, or shown as to why they did not buy another was stolen from his room at the hotel, and car, if their livery business required car

has never been restored to him. The testiservice. The chancellor should have decreed mony tends to show that the articles were a return and cancellation of the note and stolen by two other guests at the hotel who mortgage upon the delivery of the automo- | left town that afternoon, and who were subbile which was tendered by appellants.

sequently apprehended in a nearby city, but For the error indicated, the cause is

appellee's wearing apparel was not recovered. versed, with direction to enter a decree in

Appellee was temporarily in Forrest City favor of appellants in accordance with this as an electrician engaged in certain railroad opinion.

work, and spent the nights in his room at the hotel, leaving each morning to be absent throughout the day while engaged at work, He was absent from the room during that day, and when he returned to the room late in the afternoon discovered that his wearing apparel had been stolen. The room was not

locked. There was a lock on the door, but TURNER v. WEITZEL. (No. 11.)

no key had been furnished to appellee to

use in locking the room when he left it. He (Supreme Court of Arkansas. Dec. 2, 1918.) had a key of his own which, after the loss 1. INNKEEPERS Cw11(3)

of the property, was found would lock the


door, but appellee testified that he did not Under Acts 1913, p. 934, 88 1, 2a, 2b, an

know up to that time that the key would fit innkeeper is liable as bailee for hire for guest's the lock. No request was made by appellee property taken to guest's room, and not as in- for a key, and it is disclosed in the testimony surer, and is held for ordinary care and dili- | that it is customary not to lock the doors in gence only.

the hotel. Appellee testified that the wearFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes




ing apparel cost him the aggregate sum of dollars for each box, bundle, or package and $85, and that he had worn the clothing only contents, so placed under his care, and all otha short time--a part of it two weeks, and er miscellaneous effects including wearing apsome of it a month or two. The court direct parel and personal belongings, fifty dollars, uned the jury to return a verdict in appellee's less he shall have consented in writing with

such guests to favor for the sum of $50.

a greater liability. [1] We decided in the case of Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501, that the It is seen from an examination of the stat. keeper of a hotel (quoting from the syllabus) ute that section 2b deals with the liability “is an insurer of the property of his guest of hotel keepers for injury to or loss of propcommitted to his care and liable for any loss erty of guests kept in their rooms, and it is thereof not arising from the act of God or the the section which declares the law applipublic enemy or the neglect or fraud of the cable to the present case. It makes the keepguest himself.” That was stated to be the er of the hotel liable as a bailee for hire, and common-law rule on the subject, and that it abrogates the common-law liability as inwas applicable in this state in the absence of

The statute absolves the hotel keepa statute changing it. That case was decided er from liability on account of fire unless in the year 1912, but since that time the law caused intentionally by the keeper himself on that subject has undergone a material or his servants. A bailee for hire is not lichange by the enactment of the act of March able as insurer, but is held only to ordinary 29, 1913. See Acts 1913, p. 934. The first care and diligence. section of that statute provides, in substance,

"If the benefit arising from the bailment is that hotel keepers who keep a safe on hand reciprocal," said this court in Bertig v. Norsuitable for the custody of moneys, jewelry, man, 101 Ark. 75, 141 S. W. 201, Ann. Cas. and other valuable articles, and who keep 1913D, 943, "then the law requires ordinary locks on the doors of the sleeping rooms used care and diligence on the part of the bailee and by the guests, and who post a copy of that makes him responsible only for ordinary negsection of the statute in conspicuous places lect.

And this is the extent of his duin the hotel, shall not be liable to guests on

ty and liability, even though he may be so inaccount of loss of such articles, unless the terested in the property as to make him a bailee same are tendered to the hotel keeper for for hire. In such case the bailee is liable only

for negligence; and such negligence must be safe-keeping and such tender is refused. proved by the party seeking to make him reSection 2a of the statute provides that guests sponsible therefor. The mere loss of the propat hotels, upon delivering to the hotel keeper erty does not ordinarily fix a liability for the or his servants any baggage or other articles loss upon him, but it must be further shown for safe-keeping, except such as are taken to that said loss arose by reason of his negligence." the room of the guest, must demand a check or receipt to evidence the fact of such de

Other phases of the law on this subject livery, and that the keeper of the hotel shall are illustrated by the decisions of this court not be liable for loss or injury of such prop-in Union Compress Co. v. Nunnally, 67 Ark. erty "unless the same shall have been actual- 284, 54 S. W. 872; James v. Orrell, 68 Ark. ly delivered by such guest to such hotel pro- 284, 57 S. W. 931, 82 Am. St. Rep. 293; Phæprietor or to his servants for safe-keeping, nix Cotton Oil Co. v. Pettus & Buford, 203 or unless such loss or injury shall have oc- S. W. 19. curred through the negligence of such hotel

[2] Tested by the statutory duty and liproprietor, or by his servants or employés in ability of a hotel keeper, there was enough such hotel.” The next section reads, in part, evidence to warrant a submission to the as follows:

jury of the issue as to the negligence of ap“Sec. 2b. Character of Liability as to Such the court erred in giving a peremptory in

pellant in the loss of appellee's property, and Other Property; Limitations.-The liability of

Under the the keeper of any inn or hotel, whether individ- / struction in favor of appellee. ual, partnership, or corporation, for loss of, or peculiar circumstances of this case the jury injury to, personal property placed by his would have been warranted in drawing an guests under his care, other than that describ- inference either ay as to the question of ed in the preceding sections, shall be that of negligence of appellant, in failing to afford a depository for hire, except that in case such protection against loss of property of his loss or injury is caused by fire not intentional- guests. ly produced by the innkeeper or his servants,

The court also erred in arbitrarily fixing the such innkeeper shall not be liable: Provided, however, that in no case shall such liability amount to be recovered; for the value of the exceed the sum of one hundred and fifty dol- property was solely a question for the jury lars for each trunk and its contents, fift

dol- to determine. lars for each valise and its contents, and ten

Reversed, and remanded for a new trial.

amount of the advances for that year as disHOWELL et al. v. WALKER et al. (No. 27.) tinguished from those subsequently made,

and it was therefore ordered that the court (Supreme Court of Arkansas. Dec. 9, 1918.) below ascertain the amount of the 1909 ad1. APPEAL AND ERROR 1234(1)--LIABILITY vances, to the end that the property describ-INABILITY TO RETURN PROPERTY-L088 OF ed in the Beck Company mortgage might be LIVE STOCK.

sold in satisfaction thereof. The cause was Where appellant, feeling that live stock on further heard, and on November 29, 1915, which the court had declared a lien was insuffi- the amount of that indebtedness was found cient to warrant a bond under Kirby's Dig. & to be $767.38, and that finding was affirmed 1218, to supersede the entire judgment, applied by us on the second appeal. 126 Ark. 197, to court for appraisal and gave bond under sec- 189 S. W. 1058, supra. tion 1222, they and their sureties took the risk

Pending this first appeal, the appellant of stock dying, and, if unable to return stock, gave a supersedeas bond which contained must account for value thereof.

the following, among other conditions: 2. APPEAL AND ERROR 184_REVIEW-NE

[appellants] hereby covenant with the CESSITY OF OBJECTIONS BELOW.

said appellees that the said appellants will pay Where no motion was made in trial court to the said appellees all costs and damages that to transfer suit to law court, it is unnecessary

may be adjudged against the appellants on the to decide on appeal whether this should have appeal, or, in the event of the failure of the been done.

appellants to prosecute said appeal to final

judgment in the Supreme Court, if said appeal Appeal from St. Francis Chancery Court; shall for any cause be dismissed, the said sureEdward D. Robertson, Chancellor.

ties shall pay to the appellees all costs and damAction by George P. Walker and another ages, and shall perform the judgment of the

court appealed from; also that the appeal against J. 0. Howell and others. Judgment shall be prosecuted without delay; also that for plaintiffs, and defendants appeal. Af- they will satisfy and perform the judgment of firmed.

the court appealed from, in case it shall be

affirmed, and any order or judgment which the Walter Gorman, of Forrest City, for ap- Supreme Court may render, or order to be renpellants.

dered by said St. Francis chancery court, not R. J. Williams and J. W. Morrow, both of exceeding the said value of said property as Forrest City, for appellees.

ascertained and fixed in said decree, should the

sum not be forthcoming pursuant to the order SMITH, J. The present litigation is a

or judgment of the court, together with tbe continuation of the case of Howell v. Walk. usable value of said property pending the aper, reported in 111 Ark. at page 362, 164 s. peal, and all costs which may accrue by reason

of the appeal." W. 746, and of the same case found in 126 Ark. 197, 189 S. W. 1058, on the second ap- The appellants evidently felt that the peal. As appears from the statement of property on which the court had declared a facts in those opinions, appellees had be- lien was not of sufficient value to warrant come the owners of two mortgages executed them in giving a bond to supersede the enby appellants, one being known as the Grob- tire judgment, under section 1218, Kirby's meyer mortgage, the other as the Beck Com- Digest, so they applied to the court to have pany mortgage. Appellants had also execut-the property appraised, as provided for in ed a mortgage on the property described in section 1222, Kirby's Digest. The court apthe Beck Company mortgage to the Fussell-pointed appraisers—the appellant, J. O. Graham-Alderson Company, and there was a Howell, being one of them—for this purpose, question of priority between the Beck Com- who appraised each horse and mule, and the pany and the Russell-Graham mortgages.farming tools, and the wagon and harness, There was also a question as to the indebted separately, and the value thus found was ness secured by the Beck Company mort- $621, and a bond was executed for this gage, and as to whether the Grobmeyer mort-amount and the usable value and the costs gage included a mule which had been substi- of suit, as above shown. tuted for another mule, named Tobe, which After the balance due on the Beck Comhad been embraced in the Grobmeyer mort-pany mortgage had been finally ascertained, gage. These questions were submitted to and that finding affirmed by us, this suit and adjudged by the court below, and were was brought against the sureties on the sureviewed by us in the opinion appearing in persedeas bond, and upon the trial of that 111 Ark. 362, 164 S. W. 746. We held in that cause testimony was taken showing the usacase that the Beck Company mortgage did ble value of the stock to be $79, and a decree not include advances made for the year 1909, was rendered for the sum of $800, and interand our opinion directed the foreclosure of est thereon, and this appeal has been prosethe Beck mortgage only so far as it covered cuted to reverse that decree. In opposition the 1909 advances. The account had not to the rendition of this decree in the court been so kept that we could ascertain the below and to its affirmance here, it was

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

shown, and is now insisted, that certain of Heathcock, against the Truman Cooperage the mules had died pending the appeal, and Company. Judgment for plaintiff, and dethey could not, therefore, be delivered in fendant appeals. Reversed and remanded. satisfaction of the decree, and that the sum

The facts are substantially as follows: received from the sale of the property conveyed in the Grobmeyer mortgage should be

In August, 1917, Edwin Prentiss Heathapplied to the satisfaction of the supersedeas

cock, a minor, 17 years old, lived with his bond. But it is chiefly insisted that the

mother at Truman, in Poinsett county, Ark., chancery court was without jurisdiction to

and worked for the Truman Cooperage Comrender judgment on the supersedeas bond.

pany. He operated a stave jointing ma(1) Liability on the bond could not be dis

chine, and there was connected with it a charged pro tanto by the death of one or

blowpipe which carried off the dust and more of the mules. In superseding the de

waste. On returning to work at noon on cree and thereby retaining possession of the

August 25, 1917, Heathcock noticed that the live stock, the principal and the surety on

blowpipe had become choked with dust and the supersedeas bond took upon themselves

dirt. He told Asa Shikle, who was working all risk of the death of the animals, and, if

with him, not to start the machinery until they are now unable to return them, they

he could clean out the blowpipe. He took the must account for their value.

elbow off of the blowpipe and started to In regard to the Grobmeyer mortgage, it

cleaning out the pipe with his right hand, may be said that the stock there described

when Asa Shikle, carelessly and without any was not taken into account in the appraisal,

warning to him, started the machinery while and has no connection with the value repre

| his (Heathcock's) hand was still in the blowsented by the bond. And, while it is true

pipe, and cut off his index and fourth finthat the Grobmeyer mortgage has been satis

gers. On August 28, 1917, agents of the fied by the sale of the property there con

cooperage company went to see the mother veyed, there is still due a sum in excess of

of Edwin Prentiss Heathcock about a setthe amount of the supersedeas bond.

tlement of his claim for damages. On the [2] No motion was made in the court be

26th day of September, 1917, it was agreed low to transfer this cause to the law court,

between the parties that $200 would be a fair and it is unnecessary, therefore, to decide

compensation to Mary Heathcock and Edwin whether this should have been done. The Prentiss Heathcock for the injuries receivappellant filed a demurrer to the complaint, ed by him. Mrs. Heathcock was informed and later an answer setting up the defenses that it would be necessary for a judgment to herein stated. The complaint stated a cause be rendered against the cooperage company of action, and was not, therefore, demurra- before the settlement would be legal, and the ble. Appellees were entitled to have the pro cooperage company agreed to pay all the visions of the supersedeas bond enforced. expenses of obtaining this judgment. In orNo offer to satisfy the bond was made by re- der to carry out this arrangement, Mrs. turning the stock, and appellees were there- Mary Heathcock wrote to Judge J. F. Gautfore entitled to have judgment for the ap ney the following letter: praised value of the stock and for its usable

“My Dear Sir: My son, Prentiss Heathcock, value, and the decree to that effect is af

was injured at the Truman Cooperage Mill on firmed.

August 28th, 1917. I agreed to settle the matter for $200.00. If you can file the suit for me, as next friend of Prentiss Heathcock, please do so, and have the $200.00 sent to me at once.

The $200.00 must be paid net to me. TRUMAN COOPERAGE CO. V. SHELTON.

"Your kind attention will oblige. (No. 25.)

"Yours very truly." (Supreme Court of Arkansas. Dec. 9, 1918.)

On the 2d day of October, 1917, W. D. INFANTS 77-ACTIONS BY NEXT FRIEND. Shelton was appointed guardian for the per

An infant may sue by his next friend wheth son and estate of Edwin Prentiss Heathcock, er he has a guardian or not; but the court may, and letters of guardianship were issued to in the exercise of sound discretion, determine him. Pursuant to the directions received in whether or not the cause shall proceed as com the letter from Mrs. Heathcock, Judge Gautmenced, under Kirby's Dig. $ 6021.

ney instituted an action in the circuit court

for damages, wherein Edwin Prentiss HeathAppeal from Circuit Court, Greene Coun

cock, by his next friend and mother, Mary ty; W. J. Driver, Judge.

E. Heathcock, and Mary E. Heathcock, were Action by W. D. Shelton, as guardian of plaintiffs, and the Truman Cooperage ComEdwin Prentiss Heathcock, minor, against pany was defendant. The cooperage comthe Truman Cooperage Company to set aside pany entered its appearance to the suit, and judgment in favor of the minor, by Mary E. judgment was rendered against the defendHeathcock, his next friend, and Mary E. ant in favor of the plaintiffs for $200, the

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