interest thereon at the rate of 10 per cent. per annum from the 6th day of May, 1916; a lien was declared upon the lot and automobile, and a sale thereof ordered to satisfy the judgment. From this decree and order of sale, an appeal has been prosecuted and is now before us for trial de novo. coasting down a hill one was liable to wrench an axle, regardless of whether the axle was new or old; that the car was not in condition at any time after he became acquainted with it to be used as a service car; that the car was practically worthless for a livery business because it was an expense rather The testimony, in substance, was as fol- than a profit. lows: Jesse Spelce testified that he was acquainted with the car before and after the sale; that it was in their garage, both before and after the sale, for repairs; that after it was sold to Walter Brown it broke down and was brought to the garage for repair. Harley Early testified that he drove the car several times when each party owned it; that the axle broke once and he had trouble with it another time; that, so far as he knew, the car was all right when appellee owned it. that he worked on it soon after it was sold to appellants by appellee; that he thought the car broke down on account of being overloaded; that he saw it go by the shop on one occasion with nine parties in it; and that he thought the car was all right when Walter Brown bought it. Ed Dukes testified that he fixed the car twice for Walter Brown after he purchased it; that he thought Walter did not know how to run it, and on that account got it out of fix. Walter Brown, one of the appellants, testified that appellee approached him in the spring of 1916 and offered to sell an automobile to him for the purpose of hauling freight and passengers; that appellant did not Know anything about an automobile, and so informed appellee; that appellee then informed him that the car was all right and just what he needed in his business; that he had confidence in appellee and bought the automobile upon appellee's representation that it was 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 was careful in the use of it and did not overload it; that it was a six-passenger car, and he never hauled over six men in it at a time; that the expense of keeping up repairs on it was more than the profit derived from its use; that it was nothing but a pile of junk, and he finally had to put it in the barn and quit using it; that, as soon as he discovered it was of no value, he informed appellee, whereupon appellee offered 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 withnesses, the car had been worn out at the time her sons that the car was not worth anything; that it cost more to keep it in repair than they took in on it; that it was an expense from the first day; that the car is standing in the stable and will not run at all; that, had she known it was worn out, she would not have signed the note and mortgage. W. A. Tackett, automobile mechanic of long experience and employed in a service garage, testified that he attempted to repair the radiator which was leaking in October, 1916, but was never able to repair it; that the car was worn out and run down generally; that he was never able to repair it so that it would make a successful trip; that the car had to be repaired practically every time it was taken out; that he himself attempted to make three different trips with it, and it broke down each time on good roads or streets; that the gearing was worn so that in taking up the lost motion after of the sale so that it could not be repaired for service. The fact that appellee offered appellants $100 for the car when appellants discovered its true condition is a strong circumstance tending to show that it was an old piece of junk at the time the sale was induced. At the date of trial, appellee advanced the theory that the car had been rendered worthless by the careless, reckless use and driving of Walter Brown and those permitted to use it. It is noticeable that appellee himself refrained from testifying. The testimony of Ed and Bert Dukes was to the effect that they repaired the car several times for Walter Brown, and the trouble was caused, in their opinion, from a lack of knowledge in the use of it and by overloading it. Outside of seeing nine men in the car on one occasion, which was disputed by Arthur Brown, the evidence of the Dukes as to what caused the injury rested on opinion only. We do not think the evidence of Ed TY-LIABILITY-JURY QUESTION. In action to recover for property stolen from guest's room, evidence held sufficient to go to jury on the issue of the innkeeper's negligence. Appeal from Circuit Court, St. Francis County; J. M. Jackson, Judge. Action by C. W. Weitzel against B. L. Turner in the justice court. Upon appeal to the circuit court judgment was rendered for plaintiff, and defendant appeals. Reversed, and remanded for new trial. and Bert Dukes is sufficient to either over- 12. INNKEEPERS 11(12)—GUEST'S PROPERcome or equalize the evidence of appellants and other witnesses, which was to the effect that the car was in bad condition and unfitted for a service car at the time appellee induced the sale by representing that the car was in good condition and the very car needed for the livery business. The representation made was material to the contract and induced the sale. Appellee asserted as a fact that the car was in good condition and fitted for use as a service car. Appellant Arthur Brown had no knowledge of cars, and so informed appellee. Under these circumstances, appellants had a right to reply upon the representation made concerning the condition of and the use to which the car might be put, and appellee was therefore bound by his assertion that it was in good condition and fitted for the livery business, irrespective of whether he himself knew that it was worn out and worthless. Evatt v. Hudson, 97 Ark. 268, 133 S. W. 1023; Jarratt v. Langston, 99 Ark. 438, 138 S. W. 1003; Brown v. Le May, 101 Ark. 95, 141 S. W. 759; Bank of Monette v. Hale, 104 Ark. 388, 149 S. W. 845; Stewart v. Fleming, 105 Ark. 37, 150 S. W. 128. Appellants offered to return the car, and prayed for a return of the note and cancellation of the mortgage and for damages resulting to their business on account of the worthless condition of the car. The loss of profits to the business on account of the worthless condition of the car is not certainly and definitely established by the evidence. Appellants could have prevented damage to their business by the purchase of another car, and no good reason is assigned or shown as to why they did not buy another car, if their livery business required car service. The chancellor should have decreed a return and cancellation of the note and mortgage upon the delivery of the automobile which was tendered by appellants. For the error indicated, the cause is reversed, with direction to enter a decree in favor of appellants in accordance with this opinion. J. W. Morrow, of Forrest City, for appellant. MCCULLOCH, C. J. Appellee was a transient guest at appellant's hotel in Forrest City, Ark., on November 30, 1917, and afterwards instituted this action against the latter to recover the value of certain of his wearing apparel which it is alleged was stolen from his room in appellant's hotel on the day mentioned above. The action originated before a justice of the peace, but was tried before a jury in the circuit court on appeal, and, after all the testimony was introduced, the court gave a peremptory instruction in favor of appellee. The testimony shows that appellee was, as before stated, a transient guest at appellant's hotel on the day named and several days prior thereto, and that between the hours of 3 and 5 o'clock p. m, appellee's wearing apparel, a suit of clothes, an overcoat, a hat, a pair of shoes, and a suit of underwear, was stolen from his room at the hotel, and has never been restored to him. The testimony tends to show that the articles were stolen by two other guests at the hotel who left town that afternoon, and who were subsequently apprehended in a nearby city, but appellee's wearing apparel was not recovered. Appellee was temporarily in Forrest City as an electrician engaged in certain railroad 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 no key had been furnished to appellee to use in locking the room when he left it. He Dec. 2, 1918.) had a key of his own which, after the loss of the property, was found would lock the door, but appellee testified that he did not know up to that time that the key would fit the lock. No request was made by appellee for a key, and it is disclosed in the testimony that it is customary not to lock the doors in the hotel. Appellee testified that the wear TURNER v. WEITZEL. (No. 11.) (Supreme Court of Arkansas. 1. INNKEEPERS 11(3) LIABILITY GUEST'S PROPERTY-LOSS. Under Acts 1913, p. 934, §§ 1, 2a, 2b, an innkeeper is liable as bailee for hire for guest's property taken to guest's room, and not as insurer, and is held for ordinary care and diligence only. For 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 a short time-a part of it two weeks, and some of it a month or two. The court directed the jury to return a verdict in appellee's favor for the sum of $50. contents, so placed under his care, and all other miscellaneous effects including wearing apparel and personal belongings, fifty dollars, unless he shall have consented in writing with such guests to assume a greater liability. * * It is seen from an examination of the statute that section 2b deals with the liability of hotel keepers for injury to or loss of property of guests kept in their rooms, and it is the section which declares the law applicable to the present case. It makes the keeper of the hotel liable as a bailee for hire, and abrogates the common-law liability as insurer. The statute absolves the hotel keep caused intentionally by the keeper himself er from liability on account of fire unless or his servants. A bailee for hire is not liable as insurer, but is held only to ordinary care and diligence. reciprocal," said this court in Bertig v. Nor"If the benefit arising from the bailment is man, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943, "then the law requires ordinary care and diligence on the part of the bailee and makes him responsible only for ordinary neglect. * [1] We decided in the case of Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501, that the keeper of a hotel (quoting from the syllabus) "is an insurer of the property of his guest committed to his care and liable for any loss thereof not arising from the act of God or the public enemy or the neglect or fraud of the guest himself." That was stated to be the common-law rule on the subject, and that it was applicable in this state in the absence of a statute changing it. That case was decided in the year 1912, but since that time the law on that subject has undergone a material change by the enactment of the act of March 29, 1913. See Acts 1913, p. 934. The first section of that statute provides, in substance, that hotel keepers who keep a safe on hand suitable for the custody of moneys, jewelry, and other valuable articles, and who keep locks on the doors of the sleeping rooms used by the guests, and who post a copy of that section of the statute in conspicuous places in the hotel, shall not be liable to guests on account of loss of such articles, unless the same are tendered to the hotel keeper for safe-keeping and such tender is refused. Section 2a of the statute provides that guests at hotels, upon delivering to the hotel keeper or his servants any baggage or other articles for safe-keeping, except such as are taken to the room of the guest, must demand a check or receipt to evidence the fact of such deOther 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 actually delivered by such guest to such hotel proprietor or to his servants for safe-keeping, or unless such loss or injury shall have occurred through the negligence of such hotel proprietor, or by his servants or employés in such hotel." The next section reads, in part, as follows: * And this is the extent of his duty and liability, even though he may be so interested in the property as to make him a bailee for hire. In such case the bailee is liable only proved by the party seeking to make him refor negligence; and such negligence must be sponsible therefor. The mere loss of the property does not ordinarily fix a liability for the loss upon him, but it must be further shown that said loss arose by reason of his negligence." 284, 54 S. W. 872; James v. Orrell, 68 Ark. 284, 57 S. W. 931, 82 Am. St. Rep. 293; Phonix Cotton Oil Co. v. Pettus & Buford, 203 S. W. 19. [2] Tested by the statutory duty and liability of a hotel keeper, there was enough evidence to warrant a submission to the jury of the issue as to the negligence of apthe court erred in giving a peremptory inpellant in the loss of appellee's property, and "Sec. 2b. Character of Liability as to Such Other Property; Limitations.-The liability of the keeper of any inn or hotel, whether individ-struction in favor of appellee. Under the 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 way 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 intentionally produced by the innkeeper or his servants, guests. such innkeeper shall not be liable: Provided, however, that in no case shall such liability exceed the sum of one hundred and fifty dollars for each trunk and its contents, fifty dollars for each valise and its contents, and ten The court also erred in arbitrarily fixing the amount to be recovered; for the value of the property was solely a question for the jury to determine. Reversed, and remanded for a new trial. Ark.) HOWELL v. WALKER NOWELL et al. v. WALKER et al. (No. 27.) (Supreme Court of Arkansas. Dec. 9, 1918.) 1. APPEAL AND ERROR 1234(1)-LIABILITY -INABILITY TO RETURN PROPERTY-LOSS OF LIVE STOCK. Where appellant, feeling that live stock on which the court had declared a lien was insufficient to warrant a bond under Kirby's Dig. § 1218, to supersede the entire judgment, applied to court for appraisal and gave bond under section 1222, they and their sureties took the risk of stock dying, and, if unable to return stock, must account for value thereof. 2. APPEAL AND ERROR 184-REVIEW-NECESSITY OF OBJECTIONS BELOW. Where no motion was made in trial court to transfer suit to law court, it is unnecessary to decide on appeal whether this should have been done. 41 amount of the advances for that year as distinguished from those subsequently made, and it was therefore ordered that the court below ascertain the amount of the 1909 advances, to the end that the property described in the Beck Company mortgage might be sold in satisfaction thereof. The cause was further heard, and on November 29, 1915, the amount of that indebtedness was found to be $767.38, and that finding was affirmed by us on the second appeal. 126 Ark. 197, 189 S. W. 1058, supra. Pending this first appeal, the appellant gave a supersedeas bond which contained the following, among other conditions: [appellants] hereby covenant with the said appellees that the said appellants will pay to the said appellees all costs and damages that may be adjudged against the appellants on the appeal, or, in the event of the failure of the 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. Action by George P. Walker and another against J. O. Howell and others. Judgment for plaintiffs, and defendants appeal. firmed. Af Walter Gorman, of Forrest City, for appellants. R. J. Williams and J. W. Morrow, both of Forrest City, for appellees. ties shall pay to the appellees all costs and dam- The appellants evidently felt that the property on which the court had declared a lien was not of sufficient value to warrant them in giving a bond to supersede the entire judgment, under section 1218, Kirby's Digest, so they applied to the court to have the property appraised, as provided for in section 1222, Kirby's Digest. The court appointed appraisers-the appellant, J. O. Howell, being one of them-for this purpose, who appraised each horse and mule, and the farming tools, and the wagon and harness, separately, and the value thus found was $621, and a bond was executed for this amount and the usable value and the costs of suit, as above shown. SMITH, J. The present litigation is a continuation of the case of Howell v. Walker, reported in 111 Ark. at page 362, 164 S. W. 746, and of the same case found in 126 Ark. 197, 189 S. W. 1058, on the second appeal. As appears from the statement of facts in those opinions, appellees had become the owners of two mortgages executed by appellants, one being known as the Grobmeyer mortgage, the other as the Beck Company mortgage. Appellants had also executed a mortgage on the property described in the Beck Company mortgage to the FussellGraham-Alderson Company, and there was a question of priority between the Beck Company and the Russell-Graham mortgages. There was also a question as to the indebtedness secured by the Beck Company mortgage, and as to whether the Grobmeyer mortgage included a mule which had been substiAfter the balance due on the Beck Comtuted for another mule, named Tobe, which had 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 was brought against the sureties on the suand adjudged by the court below, and were reviewed 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 received from the sale of the property conveyed in the Grobmeyer mortgage should be applied to the satisfaction of the supersedeas bond. But it is chiefly insisted that the chancery court was without jurisdiction to render judgment on the supersedeas bond. [1] Liability on the bond could not be discharged pro tanto by the death of one or more of the mules. In superseding the decree and thereby retaining possession of the live stock, the principal and the surety on the supersedeas bond took upon themselves all risk of the death of the animals, and, if they are now unable to return them, they must account for their value. The facts are substantially as follows: In August, 1917, Edwin Prentiss Heathcock, a minor, 17 years old, lived with his and worked for the Truman Cooperage Commother at Truman, in Poinsett county, Ark., pany. He operated a stave jointing machine, and there was connected with it a blowpipe which carried off the dust and waste. On returning to work at noon on August 25, 1917, Heathcock noticed that the blowpipe had become choked with dust and dirt. He told Asa Shikle, who was working with him, not to start the machinery until elbow off of the blowpipe and started to he could clean out the blowpipe. He took the cleaning out the pipe with his right hand, when Asa Shikle, carelessly and without any warning to him, started the machinery while his (Heathcock's) hand was still in the blowpipe, and cut off his index and fourth finOn August 28, 1917, agents of the cooperage company went to see the mother of Edwin Prentiss Heathcock about a settlement of his claim for damages. On the 26th day of September, 1917, it was agreed between the parties that $200 would be a fair compensation to Mary Heathcock and Edwin Prentiss Heathcock for the injuries received by him. Mrs. Heathcock was informed that it would be necessary for a judgment to be rendered against the cooperage company before the settlement would be legal, and the cooperage company agreed to pay all the expenses of obtaining this judgment. In order to carry out this arrangement, Mrs. Mary Heathcock wrote to Judge J. F. Gaut In regard to the Grobmeyer mortgage, it may be said that the stock there described was not taken into account in the appraisal, and has no connection with the value represented by the bond. And, while it is true that the Grobmeyer mortgage has been satis-gers. fied by the sale of the property there conveyed, there is still due a sum in excess of the amount of the supersedeas bond. [2] No motion was made in the court below to transfer this cause to the law court, and it is unnecessary, therefore, to decide whether this should have been done. The appellant filed a demurrer to the complaint, and later an answer setting up the defenses herein stated. The complaint stated a cause of action, and was not, therefore, demurrable. Appellees were entitled to have the provisions of the supersedeas bond enforced. No offer to satisfy the bond was made by returning the stock, and appellees were therefore entitled to have judgment for the ap-ney the following letter: praised value of the stock and for its usable value, and the decree to that effect is affirmed. "My Dear Sir: My son, Prentiss Heathcock, was injured at the Truman Cooperage Mill on 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. TRUMAN COOPERAGE CO. v. SHELTON. The $200.00 must be paid net to me. (No. 25.) (Supreme Court of Arkansas. Dec. 9, 1918.) INFANTS 77-ACTIONS BY NEXT Friend. An infant may sue by his next friend whether he has a guardian or not; but the court may, in the exercise of sound discretion, determine whether or not the cause shall proceed as commenced, under Kirby's Dig. § 6021. "Your kind attention will oblige. On the 2d day of October, 1917, W. D. Shelton was appointed guardian for the person and estate of Edwin Prentiss Heathcock, and letters of guardianship were issued to him. Pursuant to the directions received in the letter from Mrs. Heathcock, Judge Gautney instituted an action in the circuit court Appeal from Circuit Court, Greene Coun- for damages, wherein Edwin Prentiss Heathty; W. J. Driver, Judge. Action by W. D. Shelton, as guardian of Edwin Prentiss Heathcock, minor, against the Truman Cooperage Company to set aside judgment in favor of the minor, by Mary E. Heathcock, his next friend, and Mary E. cock, by his next friend and mother, Mary E. Heathcock, and Mary E. Heathcock, were plaintiffs, and the Truman Cooperage Company was defendant. The cooperage company entered its appearance to the suit, and judgment was rendered against the defendant in favor of the plaintiffs for $200, the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |