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against something, while others broke while of the complaint that the packing company he was handling them; that he had had cus- had been guilty of negligence in putting up tomers tell him of the soda pop bottles burst- the meat for sale. If appellees are liable at ing, and that it was his duty to take up all under the evidence in this case, a recoythese bursted bottles, as he had instructions ery on account of that liability cannot be to replace the broken ones with other bot- defeated because of the lack of privity. tles containing soda pop; that they broke The proof is that the bottles were sold and through being overcharged, or, from the bot- delivered to the appellant, who was engaged tles being defective; and that you could not in business with her husband, although so tell by looking at the bottles whether they far, at least, as the bottles in question are would break or not. He further testified that concerned, the business was in her charge he cautioned appellees that too many bottles and under her control. were bursting and that they would have It is urged that the business being controuble about it; that they were charging ducted by her could not be hers, nor could the bottles with too much gas and that the she be a partner therein on account of the overcharge was sufficient to burst them and interest of her husband, as the wife canwas the cause of their bursting.

not engage in a partnership business with A witness, Anderson, testified that he was her husband. But, whatever her relaengaged in the distilled water and soda water tionship to her husband in regard to this business, and had been in the latter busi- business may have been, the fact remains ness for 7 years, and knew the methods of that she was in charge of it, and was injured charging such bottles; that unless a bottle while handling one of the bottles in the usual was cracked it could not be told whether it and necessary course of business.

This was defective or not, but that charging the handling of the bottle by the vendee, or his bottle was the usual test to discover that fact, employé, was necessarily within the conand that if the bottle was not defective it templation of the parties when the sale was would not ordinarily explode, if it was prop- made, and if privity is essential to a recovery erly charged; that cold water will absorb where negligence is alleged on the part of at moderate pressure a great deal more of the vendor, there is such privity here as is the carbonic acid gas, with which it is charg- necessary to sustain a recovery. If the vened, than it will when the water is warm. dor is to be held liable at all for his negliHe further testified that his experience has gence in cases of this character, thera is no been that some bottles would burst without reason for limiting that liability in favor of any apparent cause, and that the bottles used the vendee individually, who may never per: by appellees were bought from a factory sonally be exposed to the danger resulting which is considered one of the largest and from this negligence. best glass companies in the world.

[2] Actionable negligence has been defined At the conclusion of appellant's evidence, as a breach of duty resulting in injury to the court, upon motion of appellees, directed some person to whom that duty is legally owthe jury to return a verdict in appellees' ing, and the duty here is not merely to so favor, which was done, and this appeal is charge a bottle as that its contents may not duly prosecuted from the judgment rendered be wasted, but also to exercise that care upon that verdict.

which an ordinarily prudent person would

use to avoid the infliction of an injury Bradshaw, Rhoton & Helm and Marshall which might reasonably be expected to fol& Coffman, all of Little Rock, for appellant. low the failure to use this care; and that Carmichael, Brooks, Powers & Rector, of duty is owing, not only to the vendee, but Little Rock, for appellee.

also to his employés, who perform the serv

ice which the parties must have contemplatSMITH, J. (after stating the facts as ed as necessary to be performed when the above). [1] It is urged there can be no re- sale was made. covery here because of the lack of privity [3-5] There is a case reported in 138 Mich. between appellant and appellees, and the case 567, 101 N. W. 828, 68 L. R. A. 342, 110 Am. of Nelson v. Armour, 76 Ark. 352, 90 S. W. St. Rep. 321, 5 Ann. Cas. 177, the style of 288, 6 Ann. Cas. 237, is cited to sustain that which is O'Neill v. James, where the facts position. The facts in that case were that are strikingly similar to the facts in the inplaintiff had purchased from a dealer a can stant case, except that the party injured by of lunch tongue, which the dealer had pur- the explosion of the bottle was an employé chased from the Armour Packing Company, of the owner of the business, and there was the defendant, and the court held in that no proof of knowledge upon the part of decase that a demurrer to the complaint was fendant that the bottle which exploded had properly sustained, because there is no priv- been improperly charged with the gas. In. ity of contract between the vendor in one that case the plaintiff had recovered a subsale and the vendees of the same property stantial judgment, which was reversed on in the subsequent sale, and that each vendee appeal because of the insufficiency of the must resort as a general rule only to his evidence to sustain the allegations of the immediate vendor. No reference was made complaint, which allegations were held suffireviewing the contentions of the parties and, with a gas. As we have before stated, there the evidence offered in support of these con- is no proof from which the inference might be tentions, recited that there was testimony on the bottle was improperly. charged. The proof

drawn that the defendant had knowledge that the part of experts, without objection on the offered on the part of plaintiff, as well as that part of defendant, that champagne cider, offered on the part of defendant, is that the manufactured in the usual way, with the or- apparatus used by the employés was a proper dinary pressure, was safe. There was also verdict should have been directed in favor of

Under the facts disclosed by the record, a testimony that, if the pressure was increased defendant." beyond a certain limit, then the article be

The instant case, however, is distinguishcame dangerous, and dangerous because of the able from O'Neill v. James, supra, because likelihood of an explosion. The experts also there is proof here tending to show the bottestified that an explosion would not occur un- tles were improperly charged and that apder the circumstances detailed in that case, pellees were aware of that fact, or were at unless the bottle had been overcharged, and least in possession of such knowledge and would be likely to occur had the bottle been information on that subject as would impute overcharged, and that, while the testimony knowledge to them of that fact. The ordiof the defendant and of his bottler was posi- nary law of principal and agent would tive that no champagne cider had ever been charge appellees with any knowledge posbottled for sale at a higher pressure than sessed by their employés, who were actually that which was shown to be ordinarily safe, engaged in charging the bottles. it was stated that, if there were other testi

[6] The evidence in this case presents no mony in the case from which a jury might issue for submission to the jury upon the reasonably infer that this pressure had been question of the use of defective bottles, as exceeded, the question became one which the proof shows the bottles were purchased ought to be submitted to the jury for its deci- from a manufacturer whose bottles were of sion. There was opposed to this testimony, standard grade and quality, and the only on behalf of the defendant, the testimony of theory, upon which a recovery could be susexperts in which they maintained that the tained is that appellees were guilty of negliexplosion could have occurred for no reason gence in charging the bottle, and that this other than an overcharge; but there was no negligence was the proximate cause of the proof of an overcharge except this expert injury. evidence. The court held with reference to We think the proof is sufficient to require the question of negligence that the court was the submission of that issue to the jury, and right in holding that in view of the testimony the judgment of the court below is therefore in that branch of the case, the issue should reversed, and the cause remanded, with dihave been submitted to the jury; but, follow-rections to that end. ing this statement, the court said:

“There is, however, a much more serious question in the case. The testimony on both sides is that champagne cider, bottled in such bot- CANNON V. STATE. (No. 137.) tles as were used by defendant, at a pressure of 60 pounds or under, is a harmless ordinary ar- (Supreme Court of Arkansas. Sept. 28, 1914.) ticle of commerce, usually kept for sale where VAGRANCY ($ 3*)-STATUTES-ADMISSIBILITY soft drinks are sold. The record also discloses

OF EVIDENCE. that defendant did not himself charge the bottle which did the mischief. There is nothing to in: declaring all persons going about from place to

In a prosecution under Kirby's Dig. $ 2068, dicate that he ever saw it. The testimony of place for gaming to be vagrants, evidence that the bottler is that it was charged in the usual defendant had said that he had been gambling way, and sent out in the usual course of trade, in other counties within 12 months before the and that he had no knowledge that it was im. indictment, was admissible; and his gaming properly charged. Indeed, his testimony is that it was not improperly charged. There is no though protected by the statute of limitations,

more than 12 months before the indictment, testimony tending to establish that defendant had any knowledge that the bottle was over

was also admissible, as indicating that he was charged when it left his place of business, or continually going from place to place for gamfrom which an inference could be properly

ing. drawn that he had such knowledge. Under

[Ed. Note.-For other cases, see Vagrancy, this state of facts, counsel for defendant claim : Cent. Dig. $ 3; Dec. Dig. $ 3.*1 The point we raise is that where one is engaged in the manufacturing and selling of an article

Appeal from Circuit Court, Polk County ; of commerce harmless in itself, as the proofs Jefferson T. Cowling, Judge. show that champagne cider is when manufac- Wiley Cannon was convicted of vagrancy, tured and bottled in the ordinary manner, he cannot be held liable to a third person, who

and he appeals. Affirmed. stood in no privity of contract with him, be- Elmer J. Lundy, of Mena, for appellant. cause perchance one bottle did, for some rea. Wm. L. Moose, Atty. Gen., and John P. son, burst, in the absence of proof of knowledge of vendor of the defect."

Streepey, Asst. Atty. Gen., for the State. After reviewing a number of authorities, the opinion concluded with the statement

HART, J. The defendant, Wiley Cannon, that:

was tried and convicted in the Polk circuit "The plaintiff knew that champagne cider, as court of the crime of vagrancy, charged to ordinarily manufactured and sold, was charged | have been committed by going about from *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

place to place for the purpose of gaming. I before the finding of the indictment was comFrom the judgment of conviction he has duly petent. prosecuted an appeal to this court.

It was also shown by the state that the deThe testimony is substantially as follows: fendant had been engaged in gaming prior to Witnesses for the state all testify that the 12 months before the finding of the indictdefendant had resided in Mena, Polk county, ment, and counsel for the defendant insists for 10 years or more, and had not, to their that this testimony was incompetent. The knowledge. done any work for the past 5 or 6 testimony introduced by the state shows that years. Some of them stated that he was a the defendant had been engaged in gambling constant associate of a professional gambler within 12 months prior to the return of the named Davis. One of the witnesses stated indictment against him, and also that he had that he resided at De Queen, in Sevier coun- been engaged in gambling prior to and up to ty, and that about six months prior to the 12 months before the finding of the indicttrial he had a conversation there with the ment. In the case of Adams v. State, 78 Ark. defendant, in which the defendant told him 16, 92 S. W. 1123, the defendant was charged that he was at De Queen looking for a "live with the crime of incest. Evidence was adone." The witness stated that he was fa- duced by the state to prove the illicit relamiliar with gambling terms, and that the tions between the defendant and his niece, phrase "live one" is a term among gamblers mentioned in the indictment, which occurred to indicate some one with money who wants more than 3 years before the finding of the to engage in gambling at cards. Another wit- indictment. The court said: ness stated that the defendant told him that "The evidence tended to prove that these ilhe had gone to Waldron, in Scott county, to licit relations, constituting incest, commenced engage in a game of cards, and that he went ment, and continued to the time when the act

6 or 7 years before the finding of the indictthere for the purpose of “making a cleaning." for which he was indicted was committed. This Another testified that the defendant told him evidence, although it discloses other acts of inthat he had gone to Waldron and had “got cest with the same piece, the indictment for

which is barred by the statute of limitations, the worst of it" over there.

is admissible for the purpose of showing the It was also shown that the defendant ad probability of the commission of the offense mitted that he had gone to Texas, and had charged, and sustains the evidence of such of

fense. Commonwealth V. Bell, 166 Pa. 405 engaged while there in a game of craps; that

(31 Atl. 123)." he was frequently absent from Mena, and

So here the testimony shows that the dehad been convicted in the circuit court of

fendant had commenced gambling probably Polk county within the last 12 months of 2 years before the finding of the indictment, gaming. Other testimony showed that he had been convicted of gaming prior to 12 and had so continued up to the time he was months before the return of the indictment prior to 12 months before the finding of the

indicted, and although the acts of gaming in this case. Other witnesses testified that

indictment were so remote in point of time they had seen the defendant gambling. Some of these games were within 12 months before tect the defendant if he were indicted fo”

that the statute of limitations would prothe finding of the indictment in this case; others were prior thereto. No testimony was is admissible, because it is one of a series of

those acts, still proof of such act of gaming introduced in behalf of the defendant. It is earnestly insisted by .counsel for the the defendant in going from place to place

acts indicating continuousness on the part of defendant that the testimony is not sufficient for the purpose of gaming. Therefore we to warrant his conviction. In the case of Davis v. State, 109 Ark. 341, 159 S. W. 1129, hold that the testimony was competent, and Davis was indicted and convicted in the Polk are of the opinion that the evidence was

sufficient to warrant the verdict. circuit court under the same statute under

The judgment will be affirmed. which the defendant in the instant case was indicted. The court held that section 2068 of Kirby's Digest applies to all persons who "go about from place to place for the purpose of HUNTER V. FEILD et al. (No. 101.) gaming,” whether for the purpose of par. (Supreme Court of Arkansas. July 6, 1914.) ticipating in banking games or in other

1. TRUSTS ($ 89*)-RESULTING TRUSTS-Evi. kinds of gambling. The court further held

DENCE TO ESTABLISH-BURDEN OF PROOF. that, where a defendant is charged with The evidence to establish a resulting trust vagrancy under this section of the statute, in land as having been purchased for another evidence of games participated in by him in must be clear, positive, and satisfactory; and a

mere preponderance of the evidence is not sufother counties is competent to show the pur- ficient to ingraft a trust upon property conpose of his wandering about, whether to pur- veyed by deed containing no recognition thereof. sue a lawful avocation, or to habitually en

[Ed. Note.--For other cases, see Trusts, Cent. gage in the pursuit of gambling. Therefore Dig. $$ 134-137; Dec. Dig. $ 89.*] the testimony of witnesses to the effect that 2. Trusts ($_89*)-RESULTING Trusts-Evi

DENCE TO ESTABLISI-SUFFICIENCY. the defendant told them that he had been

Evidence, in an action to establish a re. gambling in other counties within 12 months I sulting trust in land as having been purchased

by defendant with money furnished by com-real estate situated in Pulaski, Desha, and plainants, held insufficient.

other counties in this state; indeed he was (Ed. Note.-For other cases, see Trusts, Cent. described as being “land poor,” and such apDig. $$ 134-137; Dec. Dig. $ 89.*] 3. TRUSTS (88 17, 18*)-VALIDITY OF EXPRESS | 1y involved, and his lands produced but little

pears to have been the case, as he was heaviTRUST-ORAL AGREEMENT.

An agreement for the purchase of land by income. The complaint alleged, and there one with money furnished by another is not en- was proof tending to show, the following forceable as an express trust, where such agree- facts: The heirs of Silas Feild agreed that ment rests entirely in parol.

[Ed. Note.-For other cases, see Trusts, Cent. the eldest son, O. B. Feild, should adminisDig. 88 15–24; Dec. Dig. 88 17, 18.*]

ter upon the estate of his father, and this 4. TRUSTS (8 6334*) —"RESULTING TRUST"- son duly qualified and acted as such adminisREQUISITES.

trator, until the estate had been administered A "resulting trust" arises out of the cir- upon and the administrator discharged. cumstance that the money of the real purchaser That it was agreed the administrator should and not of the grantee in the deed formed the consideration and was converted into land, and serve without pay, and that appellant, who such trust must arise, if at all, at the time of was a son-in-law of the intestate, should asthe purchase, and cannot spring from any sub- sist the administrator in all clerical matters sequent dealings; and hence, where the purchase money was loaned to the grantee indi- and in making the settlements, and that he, vidually, upon the security of his individual too, should serve without pay, yet the adproperty, an agreement at the time of the pur- ministrator appears to have been allowed the chase to hold the property as trustee for com- statutory commissions. That at the death plainants would not constitute a "resulting trust."

of the said Silas Feild the lands involved in [Ed. Note.-For other cases, see Trusts, Cent. this litigation were under mortgage to one Dig. 88 91, 92, 98, 99, 100; Dec. Dig. $ 6334.* B. J. Brown, who was demanding the pay

For other definitions, see Words and Phrases, ment of his money. That appellee W. A. First and Second Series, Resulting Trust.)

Feild applied to his father-in-law, C. Luchesi, 5. TRUSTS (8 63%*)-RESULTING TRUST-PA- and obtained a loan to be made appellant, BOL AGREEMENT.

A parol agreement that another shall be with which he should buy in as trustee, for interested in the purchase of land, or a parol the benefit of his wife and the other heirs of declaration by a person that he buys for anoth- Silas Feild, the property, which was about to er, without an advance of money by such other, be sold under the decree ordering the forefalls within the statute of frauds, and cannot constitute a resulting trust.

closure of the Brown mortgage, and that pur(Ed. Note. For other cases, see Trusts, Cent. suant to this agreement, the property was Dig. § 93; Dec. Dig. 8 63%.*]

sold by the commissioner of the court to ap6. TRUSTS (8 95*)-TRUST EX MALEFICIO pellant, and that although appellant took the REQUISITES-FRAUD.

title to the land in his name individually, his To establish a trust ex maleficio there must be an element of positive fraud by means of purchase and the conveyance to him was as which the legal title is wrongfully acquired, trustee. This sale took place February, 6, something more than a mere verbal promise, 1899. That upon the discharge of the adhowever unequivocal; for if there was only ministrator, appellant took charge of and such promise the statute of frauds would apply.

[Ed. Note.-For other cases, see Trusts, Cent. exercised general supervision over the affairs Dig. $8 145–147; Dec. Dig. 95.*]

of the estate, including lands not embraced 7. TRUSTS (8 110*) -- TRUST EX MALEFICIO

in the Brown mortgage, and made sales of SUFFICIENCY OF EVIDENCE.

these lands and paid the taxes thereon, and Evidence, in an action to establish a trust the complaint further alleged that appellant ex maleficio in a quarter of land, the title to has made no proper settlement of the money which had been in complainants' ancestor, held insufficient.

he has received and disbursed, and now re [Ed. Note.-For other cases, see Trusts, Cent. pudiates his trust and claims to own individ. Dig. § 160; Dec. Dig. $ 110.*1

ually the lands bought by him at the foreKirby, J., dissenting.

closure sale. The answer was a general de

nial of the material allegations of the com. Appeal from Pulaski Chancery Court; plaint, and the case presents several sharply John E. Martineau, Chancellor.

defined questions of fact. There are a numAction by W. A. Feild and others against ber of minor contradictions in the testimony, A. J. Hunter. Decree for complainants, and but the record is voluminous, and we shall defendant appeals. Reversed and remanded,

discuss only those features of the evidence with direction to dismiss the complaint for which we regard as controlling in determinwant of equity.

ing the relationship of the parties to each Appellees were plaintiffs below in a suit other. brought to enforce a trust against certain In addition to the evidence stated, appellands in Pulaski county, formerly owned by lees offered evidence to the following effect : their father, Silas Feild, who died in Septem- That the said Luchesi, who was the fatherber, 1897, leaving him surviving, in addition in-law of W. A. Feild, loaned the appellant to the plaintiffs, certain other children and the money with which to purchase the land, grandchildren. At the time of his death and loaned it upon the understanding that Silas Feild was the owner of considerable the land should be purchased by appellant *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

as trustee, that after this purchase certain property belonging to the Feild estate, and taxes on the property there sold appellant his loan was made upon the security of the were paid by the administrator and heirs of mortgaged property and the home of appelthe Feild estate, and that appellant stated lant in the city of Little Rock, in which the from time to time he only wanted his money Feild heirs had no interest whatever, and returned with interest thereon and compen- he repaid this loan out of his own funds. sation for his trouble in managing the affairs Moreover, the negotiations for this loan show of the estate. And it was testified that ap- the purpose for which it was being made, it pellant explained that he bought the land being explained that appellant intended to and took the title to himself individually, see that the mortgaged property sold for and not as trustee, because some of the Feild enough to pay the mortgage debt, and that heirs were minors and he could dispose of if this was done and some one else became the property to better advantage by taking the purchaser appellant would not desire this the title in his own name.

loan made. When the sale was made appelThe moving spirits in this litigation ap- lant was not the purchaser of all the lands. pear to have been W. A. and 0. B. Feild, O. B. Feild purchased a small tract of the who invited all the other heirs to join with land, but assigned his certificate to appellant them in the institution and prosecution of for the amount of the bid, and the second this lawsuit, but only two of the heirs ac- wife of Silas Feild bid on and bought a porcepted this invitation, the others declined to tion of the land. The commissioner executed take part in it, and were not joined as de bis deed to appellant for the lands purchased fendants, and the case proceeded to final de- by him, and testified that no intimation was cree between appellant and the heirs who given to him that appellant was not purchaswere plaintiffs. The case of the plaintiffs ing for his own account. After this, appeldepended chiefly upon the testimony of o. lant negotiated the sale of lands belonging to B. Feild and W. A. Feild and his father-in-the estate, not embraced in the mortgage, law, Mr. Luchesi, and the other heirs who and there appears now to be no question that testified derived most of their information he fairly accounted for all of the money so from these two brothers. It is undisputed received, notwithstanding the allegations of that the loan to Mr. Brown had been past after his purchase appellant declared his will.

the complaint to the contrary. Immediately due for some time and the Feild heirs had ingness to permit the heirs to redeem from defaulted in the payment of interest and ap- him, and this purpose appears to have been plication had been made to several agents reiterated frequently thereafter, except that, who made loans on real property for a loan long before any controversy arose about the to repay the Brown mortgage, but all of title, appellant announced his intention of them had declined to make a loan on the not according this privilege to a branch of lands described in the Brown mortgage in a the family referred to as the Hobbs heirs. sufficient sum to pay that mortgage. A few

Appellant testified that just before the suit days before the sale, according to the evi.

was begun the attorney for appellees requestdence of appellant, he announced his pur-ed a conference with him, at which time the pose to w. A. and 0. B. Feild to make the attorney stated to appellant that W. A. Feild land bring the debt it secured, or to buy it would testify he took the money to appellant in himself at the sale, and that his purpose at the courthouse to pay for the land. Feild in so doing was to save the remainder of the denied making the statement, but his denial real estate from a sale under an execution

was not unequivocal, while the attorney did which would issue on the deficiency judg- not deny at all that he had told appellant ment, if the land failed to bring the debt. that Feild had made this statement to him; Appellant discussed the question of a loan and no one now contends that Feild did this. with Mr. Luchesi, and he declined to make After considerable negotiations among a numthe necessary loan on the property described ber of the members of the Feild family, apin the Brown mortgage. Luchesi appears to pellant sold to Mrs. Crockett, one of the plainhave gone with appellant to the cashier of tiffs, and to Miss Nannie Feild, her sister, the Pulaski Trust Company, and to have dis- who did not join in the suit, the city resicussed the loan with that officer, but the dence bought at the sale. These two sisters point is in dispute as to how the loan was had occupied this property for some time benegotiated. Mr. J. F. Lenon, the cashier of fore purchasing it, and had paid the rent the bank, testified that as representative of thereon very irregularly and it is conceded Coffin and Ragland he made the loan to ap- that the property was sold to them at conpellant, and that later Luchesi bought this siderably less than its market value, but in loan and had the mortgage transferred to none of the negotiations for the sale of this him, and he further testified that he made property was appellant's title and right to the loan directly to appellant, and that there convey questioned, and the deed was executwas no intimation that he was borrowing ed on April 24, 1907. the money to use as trustee. A strong cir Appellant sold a portion of this Feild land cumstance which supports appellant's con- in January, 1902, and another portion in Octention is that he was unable to raise the tober, 1904, and sold a right of way for a

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