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penalty prescribed by Kirby's Dig. $ 7946, for liable for a previous refusal, then your verrefusing to send the message.

dict should be for plaintiff. (Ed. Note.-For other cases, see Telegraphs

Defendant requested the following instrucand Telephones, Cent. Dig. $8 79-81; Dec. Dig. 78.*)

tion: 4. APPEAL AND ERROR ($1068*)—HARMLESS dence that the defendant's agent, at the time

(4) Although you may believe from the eviERROR-INSTRUCTIONS.

In an action against a telegraph company the message proven in this case was tendered for refusal of agent to transmit message to his or delivered for transmission, refused to receive superior officer complaining of his conduct, and transmit the same, but that within a reawhere plaintiff and his witnesses testified that sonable time thereafter said agent notified the the agent refused to send it, and thereafter ask- plaintiff to deliver him the message, which he ed plaintiff to give him that "damned telegram," desired to send, in order that the same might be and that plaintiff did not let him have it, fear- transmitted, but plaintiff, upon such a demand, ing he would destroy it, and the agent testified refused to deliver said telegram to defendant's that he asked for it that he might send it, as the agent to be transmitted, then plaintiff is not enverdict showed that the jury believed the state titled to recover the penalty sued for in this ments of plaintiff and his witnesses wbich con

case, and your verdict should be for the deflicted with that of the agent, any error in the fendant. instructions given and refused relating to the subsequent offer of the agent to transmit the

This action was brought to recover the message were so immaterial as not to require penalty provided by section 7946 of Kirby's reversal of the judgment for plaintiff.

Digest for the willful refusal of a telegraph (Ed. Note. For other cases, see Appeal and company to send a message, the message Error. Cent. Dig. S$ 4225-4228, 4230; Dec. Dig. tendered for transmission by the appellee be$ 1068.*]

ing as follows: Appeal from Circuit Court, Jefferson Coun "C. M. Andrews, McGehee, Ark. Please adty; Antonio B. Grace, Judge.

vise why you cannot get a civil answer out of Action by Maral Franklin against the has to curse you out.

your agent here. If you ask him anything he Western Union Telegraph Company. •Judg

“[Signed] Maral Franklin." ment for plaintiff, and defendant appeals.

It appears from the evidence that the apAffirmed.

pellee was the postmaster at Tamo, and beIf you find from the evidence that the mes came involved in a dispute with the railroad sage was offered and refused, as set out in and telegraph agent at that station relative instruction numbered 4, and that a short time to whose duty it was to move the mail sacks afterward defendant's agent went to plaintiff into the depot when thrown on the platform and demanded or requested plaintiff to give from the trains after night. The postmaster him the message, but did not state or explain had written to the superintendent of the to plaintiff that it was his purpose to send mail service, and had been informed that it, as previously requested, then it is a ques- when the train was two hours or more late tion of fact for you to determine from all to leave the mail to the care of the station the evidence what the purpose of the agents agent. The postmaster, on the 19th, went was in making such demand or request, and to see the depot agent, Causey, and asked whether or not the circumstances were such why he had not taken care of the mail that plaintiff understood therefrom that thrown from the train the night before, was the desire of the agent to get the mes. which was five hours late. He said: sage for the purpose of transmitting it. If "I asked him why the mail was left out, and you find that the agent did, in fact, intend to he said, 'By God, it is not my business to take send the message and wanted it for that pur- superintendent for that, and that I had already

care of it,' and I told him it was bim and the pose, and that he so informed the plaintiff, reported it, and he said, "God damn you and or that all the circumstances were such as the superintendent too; I don't care anything that plaintiff should have ưnderstood, and about either of you. Then I asked him for a

telegram blank, and told him I was going to did, in fact, understand, therefrom that the report him to the superintendent, and I wrote agent wanted the message for the purpose the telegram and handed it to him with a $5 of sending it to the person addressed, then bill, and he said it was 'a damped lie, and he it was the duty of plaintiff to give it to him would not send it. He did not refuse the tele

grain because he did not have the change. He for that purpose, and if he refused to do so handed me the message and the $5 back, and then the defendant is not liable herein, and said he would not send it. About 30 minutes your verdict should be for the defendant. afterwards he came out and said, “You give me

that damned telegram.' I thought he wanted to But, if you find that at the time of making tear it up, and would not let him have it. He such subsequent demand defendant's agent did not say anything about wanting to send it; did not inform plaintiff of his willingness and made me believe he wanted to tear it up. and intention to send the message, and that Several witnesses testified to the transacthe circumstances were such that plaintiff tion about as related by the appellant. The did not understand that such was the agent's agent himself said that when the appellee purpose and intention at that time, then handed him the message he really did not such subsequent demand for the message, know he wanted to send such a message as without explanation, would not relieve the that, didn't think, he did, and told him that defendant from any liability previously in- he would not send it. He denied having curred, and if you find that the company was used the oaths about the appellee and the

superintendent. Also said that he did not | 2. NEGLIGENCE (8 97*)_COMPARATIVE NEGLI

GENCE-INJURIES TO PASSENGERS. say that the message written was a damned

Where plaintiff was injured by falling over ise, and that he later went out and asked an obstruction on a carrier's depot platform, an for the message that he might send it, and instruction that, if she failed to exercise ordithe appellee declined to give it to him. nary care which may have contributed remotely The jury returned a verdict against the to her injury, yet if defendant's employés were

negligent which constituted the immediate cause telegraph company for the penalty, from of the injury, and by prudence the employé which it appealed.

might have prevented the injury, defendant was

liable was erroneous, since, if plaintiff's own George H. Fearons, of Dallas, Tex., Bridges negligence contributed in any way to her injury, & Wooldridge, of Pine Bluff, and Rose, she could not recover. Hemingway, Cantrell & Loughborough, of

[Ed. Note.-For other cases; see Negligence, Little Rock, for appellant. Earl S. Wood,

Cent. Dig. $$ 93, 162, Dec. Dig. $ 97.*] of Pine Bluff, for appellee.

Appeal from Circuit Court, Phillips Coun

ty; J. M. Jackson, Judge. KIRBY, J. (after stating the facts as

Action by Lucinda Musgrove against the above). [1-3] It is contended for reversal St. Louis, Iron Mountain & Southern Railway that the telegram was not a proper message Company. Judgment for plaintiff, and deto transmit, and that the company had a fendant appeals. Reversed and remanded. right to refuse to send it. The law allows

This is an action for damages for personal a telegraph company to refuse to send a message that is obscene, slanderous, blasphe- injury alleged to have been received on acmous, profane, indecent, or the like, but this count of the negligence of the railroad commessage was not of that character, and was pany in allowing an obstruction to remain

upon its platform at the passenger's destinaentitled to be transmitted. Even if the pur: tion, over which she fell and was injured. pose of the sender was to report the conduct of the agent to his superior, it did not affect road from Marvell to Postelle, Ark., and, after

She became a passenger on appellant's railhis right to recover the penalty prescribed by the statute for the willful refusal to send alighting from the train at the station of her the telegram. West. Union Tel. Co. v. Lil fell over a box lying upon it, from which an

destination, started across the platform and lard, 86 Ark. 211, 110 S. W. 1035, 17 L. R. iron shaft protruded a couple of feet. There A. (N. S.) 836; Railway Co.,v. Smith, 60 Ark.

were two boxes containing gin saws lying up221, 29 S. W. 752; Railway Co. v. Trimble,

on the platform, and from the ends of the 54 Ark, 354, 15 S. W. 899.

boxes, about 18 inches from the floor, an [4] Neither do we find it necessary to de- iron shaft protruded. There were about six cide whether or not instruction numbered 5 feet of clear space on the platform between was a correct declaration of the law, or the railroad track and the boxes. Appellee whether the one on that subject requested testified that after she was helped off the by appellant should have been given. Under train she only took one step to go between the circumstances of this case the difference the porter and the boxes, between the two instructions was not mate and there was a piece of cast iron sticking out rial, and could not have influenced the jury of the end of the box. I did not see the obstacle in reaching its verdict. They evidently be- until it was too late to stop. I was going too lieved the statement of appellee and his wit- fast and I just pitched over.

When I nesses about the transaction, which was so Those boxes were lying right there in the way,

got off the train, my son was waiting for me. radically different from the version given by and I was afraid to stand there until the train the agent that the instruction given by the passed. I don't know whether I was watching court could not have been prejudicial if it the train, but I was past the box and pitched

right over it, head foremost." was incorrect.

Her son testified: The issues in the case were fairly presented by the instructions declaring the law, gone out of the waiting room and was standing

"I was at the station to meet Mother; had and we find no prejudicial error in the rec- out there when she was getting down off the ord. The judgment is affirmed.

steps of the car. I started toward her, and there were a couple of gin saw boxes lying cater-cornered from the depot to the railroad,

and she started around the obstruction, and ST. LOUIS, I. M. & S. R. CO. v. MUS.

there was a shaft sticking out that came very GROVE. (No. 81.)

close to the track, and she tumbled over that (Supreme Court of Arkansas. June 29, 1914.) of the depot to the railroad. The gin saws were

shaft. It was just 16 feet from the corner 1. CARRIERS ($ 280*)-INJURIES TO PASSEN- five feet, and this two-foot shaft besides that

DEPOT PLATFORM OBSTRUCTIONS - sticking out. There couldn't have been mucb CARE REQUIRED.

space between them on the platform because A railroad is not an insurer of persons it was only 16 feet and those two gin saws rightfully on its platforms, passing to and were 14. My mother probably made one step, from trains, but is only bound to the exercise of or maybe the second step, when she fell over ordinary care to keep the platforms in a safe this two-foot shaft." condition.

Other witnesses testified that there was a [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1085–1092, 1098-1103, 1105, 1106, clear space of 5 to 7 feet between the boxes 1109, 1117; Dec. Dig. $ 280.* ]

of machinery and the train. The station •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes.

GERS

agent stated that she had made about 15 , remotely to her injury, yet if defendant's emsteps toward her son, placed her grip on the ployés, or any one of them, were guilty of any gin saw crate, and, after greeting him, picked plaintiff's injury, and with the exercise of

negligence which was the immediate cause of it up, and, just as she started, she stumbled prudence by said employé, or any one of them, over the shaft sticking out of the crate. said injury might have been prevented, the de: The court gave, among others over appel- fendant is liable in this cause, and you will

find for the plaintiff. lant's objections, instructions 1, 2, 5, and 10 as follows:

The jury returned a verdict against the (1) The jury are instructed that, under the railroad company, and, from the judgment law, railroad companies owe a bigh duty to per- thereon, it appealed. sons traveling upon their trains, and are bound to keep in safe condition all portions of their

E. B. Kinsworthy and T. D. Crawiord, station grounds reasonably near to their depot, both of Little Rock, and P. R. Andrews, of where their passengers taking passage or de Helena, for appellant. W. C. Trotter, of Helbarking from their cars would naturally and ena, for appellee. ordinarily be liable to go, and especially by those routes and methods that they have by their own custom and practice established.

KIRBY, J. (after stating the facts as Therefore, if the jury believe from the evidence above). [1] Instructions numbered 1, 2, and 5 in this case that the defendant, through its are erroneous and were prejudicial. Each and employés, was negligent in the matter of plac- all of them exact a higher degree of care of ing or leaving obstructions upon its_station grounds reasonably near to its depot at Postelle, the railroad company in protecting passenArk., and further believe from the evidence that gers upon their platforms than the law rethe plaintiff, while exercising due care, fell over quires. A railroad company is not an insursaid obstruction after debarking from defendant's passenger car and while trying to make er of persons rightfully upon its platforms, her way to defendant's depot over the route and is only bound to the exercise of ordinary that defendant had established by custom and care in keeping its platforms in safe condipractice, and was injured by said fall, then you tion for passengers and others rightfully uswill find for plaintiff in such sum as you-believe to be a just compensation for the injury re- ing them. Railway v. Robinson, 96 Ark. 32, ceived, unless you further find that the plaintiff 130 S. W. 536; Railway v. Purifoy, 99 Ark. was guilty of contributory negligence.

Grider, 161 (2) If the jury believe from the evidence that 369, 138 S. W. 631; Railway v. the plaintiff purchased a ticket or paid her fare S. W. 1032; Railway v. Woods, 96 Ark. 315, over the defendant's road from Marvell to Pos- 131 S. W. 869, 33 L. R. A. (N. S.) 85; Railway telle, Ark., then it was a contract between de- v. Watson, 102 Ark. 503, 144 S. W. 922. fendant and plaintiff for the safe carriage from Marvell to their depot at Postelle, and under

In Railway v. Woods, supra, the court said: said contract it was defendant's duty, upon

“The exercise of ordinary care is the measure the arrival of its train at Postelle, to furnish of the duty of a public carrier to protect passenplaintiff with a safe, easy, and convenient pass- gers while at stations,

* The higher way to travel from its train to its depot build- degree of care is exacted only during the time ing; and, if it did not furnish said safe, easy, in which the passenger has given himself wholly and convenient passway to the plaintiff from in charge of the carrier', while on the train or its train to its depot building, then it was neg- getting on or off, for then only is the passenger ligence upon the part of the defendant; and subject to the peculiar hazards of that mode of if the jury find that, by reason of said negli- travel against which the carrier must exercise gence, the plaintiff, using due care, was in-' the highest degree of skill and care." jured, as alleged in her complaint, you will find for the plaintiff in such sum as you be

In Railway v. Watson, supra, the court lieve from the evidence will fully compensate

said: her for her injury, unless you find plaintiff was "This duty not only requires the railroad comguilty of contributory negligence.

pany, as a carrier of passengers, to exercise (5) The jury are instructed that common car- ordinary care to see that the station platform riers of passengers are required to exercise the itself is in safe condition and free from any strictest care consistent with the reasonable defect from which a consequent injury might performance of the contract of transportation; be reasonably expected to result, but also to and, while they are not bound to insure the keep such station platform free from obstrucabsolute safety of their passengers, they are tions and dangerous instrumentalities, especially required to make use of, such safeguards for at the time when passengers are expected to the protection of their passengers as science go to and from its cars." and art have devised, and as experience has proved to be efficacious in accomplishing or se

[2] Instruction numbered 10 is also errocuring their safety. It is not sufficient that neous, seeming to apply to the doctrine of they exercise slight, common, or even great care, comparative negligence rather than a correct for they will have discharged their duty toward them when they have employed all the statement of the law relative to contributory means reasonably within their power to prevent negligence. The injured person cannot retheir injury. To render them liable for an inju- cover, if his own negligence has in any way ry to a passenger while under their charge, it is contributed to his injury, even though there not necessary that they be guilty of gross or great negligence; it is enough if the injury has been negligence on the part of the carwas caused solely by any negligence on their rier that would otherwise make it responsible part, however slight, if, by the exercise of the for the injury. 6 Cyc. 635 ; Railway v. Norstrictest care and precaution reasonably within their power, the injury would not have been ton, 24 Pa. 469, 64 Am. Dec. 672; Heil v. sustained.

Glanding, 42 Pa. 493, 82 Am. Dec. 537; Rail(10) The jury are further instructed that, al-way v. Grider, 161 S. W. 1032. though plaintiff may have failed to exercise

We have not examined all the instructions ordinary care and prudence while traveling from defendant's passenger car to its depot building with the view to ascertaining their correct

pointed out in giving the instructions herein the court ascertain the amount due from passed upon, that the judgment must be re- plaintiff and declare the same a lien upon the versed, and the case remanded for a new land. trial.

Appellant King denied that Crone purchasIt is so ordered.

ed the land from Hammock and borrowed the money from him with which to pay for it, and that the deed executed by Hammock to

him was intended as a security for money adKING V. CRONE. (No. 97.)

vanced to plaintiff. Alleged the sale of the (Supreme Court of Arkansas. July 6, 1914.) eastern portion of the land to plaintiff and 1. MORTGAGES (8 32*)—ABSOLUTE DEED OR execution of bond for title therefor, and the MORTGAGE-EVIDENCE.

sale of the western portion to Arthur Harkey Certain land having been conveyed to de- and execution to him of a bond therefor, and fendant, he executed a bond for title to complainant, taking complainant's notes for the alleged that on January 2, 1908, he executed price, and, these not having been paid at ma a bond for title to plaintiff for the entire turity, the bond was canceled, and complainant tract of land, agreeing therein to convey it voluntarily became defendant's tenant for the years 1910, 1911, and 1912, executing notes for upon the payment by him of $1,200, of which the rent. Held, that the surrender of the bond $250 was due in November, 1908, and $950 on for title constituted a rescission of complain: January 1, 1909, for which notes were exeant's contract to purchase and a termination of cuted by the plaintiff; that the notes were all bis interest in the land, and hence he could not maintain a suit to have the deed to de- never paid, and thereafter the trade was fendant declared a mortgage on the theory that canceled, and he surrendered the purchaseit was intended to secure repayment to defend money notes to the plaintiff, and who surant of money advanced to purchase the land for rendered the bond for title and turned over complainant. [Ed. Note.-For other cases, see Mortgages, plaintiff then rented the lands and gave bis

the possession of the land to him; that the Cent. Dig. 88 60–66, 84-94; Dec. Dig. $ 32.*]

note in payment of the rent therefor, until 2. Frauds, STATUTE OF ($ 56*)—INTEREST IN 1912, when he rented the lands to one Boyd, LAND-CONTRACT TO CONVEY.

Where, after the release of a bond for title, with the knowledge of plaintiff and without the vendor agreed to renew the bond by parol, any objection on his part. such agreement was within the statute of frauds

We do not deem it necessary to go into the (Kirby's Dig. $ 3664), as a contract to convey contention about whether this was a sale to an interest in land, and uneuforceable.

(Ed. Note. For other cases, see Frauds, Stat. Crone with the purchase money borrowed ute of, Cent. Dig. 88 83–89, 136-138; Dec. Dig. from King and the deed made from Ham$ 56.*)

mock to him as security therefor, since both Appeal from Cleburne Chancery Court;

parties agree that the entire tract of land

was sold by King to appellee Crone on Jan. George T. Humphries, Chancellor.

Suit by J. M. Crone against J. M. King. uary 2, 1908, and the bond for title executed Decree for complainant, and defendant ap- chase-money notes. When these notes for the

to convey same upon the payment of the purpeals. Reversed and remanded, with instruc

purchase money became due, the appellee did tions to dismiss.

not pay them and surrendered the bond for J. M. Crone brought this suit to have a title to the appellant upon the delivery to him deed from Hammock to King declared a of the purchase-money notes. These facts mortgage, alleging that he had purchased are undisputed. the land, 138 acres, from Hammock and bor Appellant testified: That Crone was unarowed money from King with which to pay ble to pay the purchase-money notes, and profor it; that Hammock executed the deed to posed to surrender the bond for title for King, which was intended only to secure the them and cancel the trade. That he agreed repayment of the money to him; and that on to this, and that it was done. That he therethe same day King executed to plaintiff a after rented the lands to Crone for the years bond for title for the east portion of the land 1910, 1911, and 1912 for $200 a year, and the containing 70 acres, and also executed to one notes taken each year therefor recited that it Arthur Harkey a bond for title for the west was for rent of the lands. That he rented portion, containing 68 acres, and took their the lands to Boyd in 1913 with Crone's knowlnotes for the payment. One tract of this edge and without any objection from him. land was transferred to three different peo Edward testified: That he heard a converple, but afterwards deeded again to King, sation between the parties, in which Crone on January 2, 1908, who sold it to appellee told King it appeared he could never get in Crone, giving him bond for title for the en- any better shape, and that, if it suited him, tire tract to which he agreed to execute a he would rather surrender his bond for title deed upon the payment of $950 on January to the place and take his notes back. That 1, 1909, the interest at 10 per cent. It was King replied he preferred to have the money, alleged that the deed from Hammock to King but would do this, and turned over the notes was intended as a mortgage to secure the to Crone, who gave him the bond for title. payment of the money advanced, and the That Crone then said he would be glad to prayer was that it be so declared, and that rent the place for a year, and King told him

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

he might have it. Heard Crone say he would peared. to have been made during the past like to rent the place after King had sur- four or five years. rendered the notes to him, and he had sur- King stated that Crone paid the tases, but rendered the bond for title, and he under that he had either loaned him the money stood that Crone did rent the place. He with which to pay them or allowed him credheard nothing said about the bond for title it therefor. being surrendered for a new one.

The court found that Crone bad purchased Crone stated: That he gave the notes, the lands from Hammock and borrowed the $950 due January 1, 1909, and $250 due No- money from King with which to pay therevember 1, 1908, for the purchase money, and for, and that the deed executed by Hammock took the bond for the conveyance upon the to King, conveying them, was as security for payment of the last note. That on Janu- the money and in the nature of a mortgage, ary 1st, thereafter, the bond for title was ex- made a statement of the account between tended 12 months. He did not claim to have the parties, and declared a lien upon the paid anything wbatever on the $950 note, lands for the amount still due, and from the nor all the $250. note, which recited that it decree this appeal comes. was given for rent, and Crone only claimed

Samuel Frauenthal, of Little Rock, for apthat $50 of it was for purchase money. He pellant. Wm. T. Hammock, of Quitman, for said:

appellee. "I made a trade with Mr. King and gave him my note for $950 as purchase money of the land, and a rent note for $250. Fifty dollars

KIRBY, J. (after stating the facts as of this money was a part of the $1,000 of pur- above). [1] It is contended that the chanchase money, and $200 of that was rent or cellor's finding is clearly against the preponinterest for the year 1908; and he gave me a derance of the testimony, and with this conbond to convey the title upon the payment of tention we agree. The evidence is undisputthe note due January 1, 1909."

ed, without regard to the nature of the first Crone admitted that he surrendered the transaction between Hammock and King, bond for title upon the delivery to him of that King thereafter sold the land, on June the $950 purchase-money note, and that King 2, 1908, to Crone, and executed a bond to also surrendered to him at the same time convey the title upon the payment of the his note for $200, which had been given for purchase-money notes; that these notes were the rent of 1911. He claims that, after he not paid; that the bond for title was extendsurrendered the bond for title, he went to ed for 12 months; and at the end of that get a new bond, and King told him that his time that the trade was canceled and the word was as good as his bond. That was bond for title surrendered to King, the maker, about two weeks after the surrender of the who at the same time delivered to Crone the bond when he went to King for a renewal unpaid purchase-money notes; that the posof it. He paid the taxes on the land until session of the land was also delivered to it was rented to Boyd.

King, and that Crone thereafter rented it Boyd, to whom the land was rented for from King, giving his notes for the rent, 1913, testified that he had a conversation which specified they were for the rent therewith Crone in which he asked if he had rent- of. It is true that Crone says that a week ed the land from King, and he told him he or two after the transaction of the surrender had, and understood from him that King of the bond for title he asked King to renew owned the land. This conversation occurred the bond and make him another bond for after he moved on the place. Crone said he title, and was told that his word was as was indebted to King, and told him to come good as his bond, and that he continued in up the following Saturday and bring the two the belief that the bond would be executed rent notes and he would pay them. Said until after the lands were rented to Boyd the notes were for rent of the place. Said in 1913. He does not deny that he became a he paid some of them, but had not paid ei- tenant of King after the surrender of the ther of them in full. One was for 1911 and bond for title and executed notes for the rent one for 1912. That Crone knew when he of the land, some of which he paid. The went on the land and raised no objection nor voluntary rescission of the contract and sursaid anything about his having any claim render of the bond for title and the possesthereto. Was present when King showed sion of the land for the unpaid purchasethe rent notes which he held to the plaintiff, money notes released all right that appellee who said they were all right. When he took had theretofore. Friar v. Baldridge, 91 Ark. possession of the lands, the fences had fallen 140, 120 S. W. 989; Sullivan v. Dunham, 42 down, and the place was going to waste. Mich. 518, 4 N. W. 223; Raffensberger v. Cul

Joseph M. Boyd also testified that Crone lison, 28 Pa. 426. asked him from whom his father had rented [2] If appellee had surrendered the bond the place, and was told from Mr. King, and for title on condition, contending that a new in this conversation he asked Crone who one should be executed, of course it would owned the place, and was told that Mr. King not have had effect to release his interest, owned it. Witness stated that the fences but, according to his own statement, it was were in bad condition, and he did not no- a week or two after the transaction of the

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