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that the only other person employed in the to the plaintiff the first time he talked to him. office was a young man who was a stenog- This agent also stated that where an animal rapher, and that he did not have authority was killed or died in transit it was his custo settle damage claims. A veterinary sur- tom to have a veterinary surgeon examine geon who had been employed by the claim the dead animal to ascertain the cause of its adjuster to examine the stock testified that death if possible, and also to examine the he cut open the dead mule, and that the mule remainder of the shipment to see if any of had died of colic. He also stated that he the other stock were injured. On the other had examined the remainder of the stock, hand, the plaintiff testified that as soon as and that none of them was injured. An- he discovered that his stock had been inother witness for the railroad company tes-jured he went to the station agent and gave tified that he was in a car with stock of him verbal notice of the injury and of the his own from Russellville to Argenta, that fact that he would claim damages therefor. the plaintiff's stock were in a car near to the The station agent directed him to a certain one in which he rode, and that he heard the office in Little Rock where he might put in a plaintiff's animals biting and fighting each claim for damages. He went over to Little other on the way down. He admitted, how- Rock and employed a lawyer, and with his ever, that there was some switching after lawyer went to the office to which he had the train arrived at Argenta, and that he did been directed by the station agent. He there not know what occurred there. The jury re- 'met a young man in charge of the office, who turned a verdict for the plaintiff in the sum entered into negotiations with him looking of $170, and the defendant has appealed. to an adjustment of his claim, and who acOther facts will be referred to in the opinion. tually went over to Argenta and examined

E. B. Kinsworthy and W. G. Riddick, both the injured stock for that purpose. This of Little Rock, for appellant. Carmichael, i person admitted the liability of the railroad Brooks, Powers & Rector, of Little Rock, for company and promised to settle the loss with appellee.

the plaintiff. Though the claim agent testi

fied that the young man did not have authorHART, J. (after stating the facts as above). ity to adjust the loss, we think, under the [1] There was a clause in the bill of lading circumstances, that the jury were warranted which required the plaintiff to give written in finding that he did have such authority. notice of any claim for damages for injury He was left in charge of the office by the to his stock while in transit, and it is the person whose duty it was to settle such contention of the railway company that the claims, and actually entered into negotiations judgment must be reversed because the plain- looking to a settlement of them. Though the tiff failed to give the written notice of his claim agent testified that he always sent a intention to claim damages for the alleged veterinary surgeon to examine live stock for injury to his stock. This court has held that injuries, still the jury might have inferred the provision of the contract requiring that that he sent the veterinary surgeon in questhe shipper give written notice of the place tion because his office had been notified that and nature of the injuries to the nearest the stock had been injured and of the plainstation or other agent of the carrier may be tiff's intention to claim damages. waived by the railway company. The reason [3] It was next contended by counsel for given therefor is that the object of requiring the defendant that there is not sufficient tesnotice of the place and nature of the injuries timony to warrant the verdict or the amount is to give the carrier an opportunity for a thereof. We do not agree with them in full and fair investigation of such injuries this contention. The contract provided that when and where it will be most certain, easy, the amount of damages to be recovered for and expeditious. The notice is required to a dead animal should not exceed $100. Unbe in writing, so that the nature of the ship- der this clause of the bill of lading, though per's grievance may be definitely and clearly the mule killed in transit was worth more stated. St. L., I. M. & S. Ry. Co. v. Jacobs, than $100, the plaintiff was limited in his 70 Ark, 401, 68 S. W. 248; St. L. & S. F. R. recovery to that amount. According to the Co. v. Vaughan, 88 Ark. 138, 113 S. W. 1035; plaintiff's testimony, the injuries to the other St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154, stock amounted to $170, and the jury re115 S. W. 933; St. L., I. M. & S. Ry. Co. v. turned a verdict in his favor for that amount. Shepherd, 113 Ark. 248, 168 S. W. 137.

It is evident, therefore, that the jury did not [2] In the present case it is insisted that allow him anything for the dead mule which there is not sufficient testimony to warrant the testimony of the veterinary surgeon the jury in finding that the written notice showed to have died of colic, and that he was waived by the railroad company, but we was given a verdict only for the injured stock. cannot agree with the contention of counsel The plaintiff's testimony as to the amount of in this respect. It is true the agent whose the damages sustained by the stock is corduty it was to settle claims of this sort testi- roborated by other witnesses. Though the fied that there was no one in his office who witnesses did not take up each head of the had authority to settle such claims except stock in detail and state the amount of the · Ark.)

DAVIDSON V. MAYHUE

371

the stock were injured, and in the ones they shows that the case was tried on this theory, did undertake to testify specifically about and that counsel for the railroad company they placed the damage at as much or a were not misled in regard thereto. Under greater amount than that testified to by the these circumstances it cannot be said that plaintiff.

the rule contended for by counsel for the There was a dispute between the witness- defendant as to the burden of proof obtains, es as to how the stock received their inju- even if it is the correct rule. ries, and this dispute was settled in favor The judgment will be affirmed. of the plaintiff. On the one hand, the conductor of the train

DAVIDSON V. MAYHUE et al. (No. 157.) testified that there were no unusual jolts or jars to the train while it was in transit from (Supreme Court of Arkansas. Oct. 11, 1915.) Russellville to Argenta. He also denied that 1. ATTACHMENT Om366–WRONGFUL ATTACH

MENT-ASSESSMENT OF DAMAGES. he examined the stock after the train arrived

Under Kirby's Dig. $ 381, declaring that in at Argenta, but in this he is flatly contra- actions of attachment in which the defendant dicted by the plaintiff. The plaintiff testi- shall procure a discharge the court trying the fied that he and the conductor examined the attachment shall assess the damages and ren

der judgment against plaintiff and his sureties, stock after the train arrived at Argenta, and judgment for wrongful attachment in an acstated that the stock were then in good con- tion for rent where crops were attached should dition. He did not claim any damages for be rendered in the attachment action, for not

only is the statute mandatory, but the jury injuries alleged to have been sustained dur- must there determine the amounts in issue. ing the trip from Russellville to Argenta. On [Ed. Note.-For other cases, see Attachment, the other hand, he bases his right of action Cent. Dig. 88 1339-1342, 137942; Dec. Dig. solely on the fact that the injuries to the

On 366.] stock were received after the train arrived 2. ATTACHMENT Om 343 – ACTIONS ON SEPAat Argenta. The testimony shows that some

RATE Bonds—CONSOLIDATION-EFFECT.

Where two attachments for rent begun in switching was done with the car after it was justice court were consolidated on appeal to the set on the side track, and that when the circuit court on defendant's motion, the separate plaintiff next saw the stock in the stockyards actions were discontinued, and the consolidated

no the next morning they were injured as tes- the attachment bonds could be maintained. tified to by him. Although the railroad com- [Ed. Note. For other cases, see Attachment, pany introduced testimony tending to contra- Cent. Dig. 88 1233, 1235-1237; Dec. Dig. On dict the plaintiff in this respect, we think 343.] there was sufficient testimony to warrant Appeal from Circuit Court, Independence the jury in finding that the stock were in-County; Dene H. Coleman, Judge. jured after the train had arrived in Argenta, Action by W. L. Davidson against Maggie and before the plaintiff saw them the next Mayhue and another. From a judgment for morning. The jury might have inferred that defendants, plaintiff appeals. Affirmed. they were injured while the car was switch

This suit was instituted by the appellant ing around in the yards at Argenta or while against the appellees February 23, 1915. The being unloaded by the railroad company. complaint alleged that Maggie Mayhue inA witness for the plaintiff had testified that stituted attachment suits against W. L. he had had considerable experience in ship-Davidson before a justice of the peace, one ping stock, and that the injuries to the stock suit being for the sum of $200 and the other were not from biting or kicking.

for the sum of $220, money alleged to be due [4] Finally it is contended by counsel for for rent on certain lands for the year 1912; the railroad company that the court erred in that attachments were issued and a bond exrefusing to instruct the jury that the burden ecuted in each case by Maggie Mayhue, with of proof was upon the plaintiff to prove all W. A. Mayhue as surety, the bonds being in the material allegations of the complaint. double the amount sued for; that on the 9th They contend that the court should have day of November, 1912, there was a trial given this instruction because the plaintiff in each case, and the attachments were susaccompanied the shipment of stock, and on tained, and judgment rendered against Dathat account was in a position to know in vidson for the respective amounts claimed ; what place and in what manner they received that Davidson took an appeal to the circuit their injuries, and that therefore the burden court; that in the circuit court, on motion of proof was upon him. We do not deem it of Davidson, the two cases were consolidated necessary to decide this question. As we and tried as one case; that judgment was have already seen, the plaintiff based his rendered, upon the issues, in favor of the deright of action solely on the ground that the fendant in the attachment suits (who is stock received their injuries after the train plaintiff here), dismissing the attachments, had arrived in Argenta, and after he had with judgment for costs, etc.; that Maggie left the train. He testified positively that he Mayhue, plaintiff in the attachment suits, and the conductor examined the stock after and her bondsman, W. A. Mayhue, are liable the train had arrived at Argenta, and that to the plaintiff, Davidson, by reason of the they were then in good condition. The record / wrongful attachment proceedings, in the sum of $980, setting out the items constituting a larger sum on his debt, and find the defendant the damages. The prayer was for judgment insolvent. One trial should settle all

, and damin favor of plaintiff against Maggie Mayhue ages may be set off when fixed, and a final judg

or a and W. A. Mayhue in the sum of $980, with balance." interest, costs, etc.

In the recent case of Rodgers v. Cades, 103 The defendants demurred to the complaint, Ark. 187, 146 S. W. 507, we held: alleging that it did not state facts sufficient

“When an attachment was dissolved, and to constitute a cause of action, and setting there was evidence tending to prove that deup that plaintiff was estopped from maintain- fendant sustained damages by reason thereof, ing the action because the issue as to the it was error to refuse to permit the jury to

assess whatever damages defendant sustained damages which he alleged occurred by rea- by reason thereof." son of the attachment suits should have been

The complaint in the present case shows determined in those suits. The court sustain that: ed the demurrer and plea in bar of the ac- "A judgment was rendered upon the issues in tion, and, the plaintiff refusing to plead fur- favor of the defendant Davidson, and dismissing ther, the court rendered judgment dismissing the attachment, with costs.” his complaint and for costs in favor of the It appears from the complaint in this case defendants. The plaintiff duly prosecutes that the original suit of appellee Maggie his appeal to this court.

Mayhue against the appellant, Davidson, in Samuel A. Moore, of Batesville, for ap- which the attachment was issued, was for pellant. Ira J. Mack, of Newport, for ap- also sets forth that the crops on the leased

rents, setting up the amount. The complaint pellees.

ground had been taken and sold under the WOOD, J. (after stating the facts as attachment proceedings. Since the judgment above). [1] The court did not err in dismiss- was rendered in favor of the defendant, the

court or jury trying the issues of that case, ing appellant's complaint. Section 381 of Kirby's Digest provides:

as they should have been tried under the “In all actions of attachment in which the de- law, must have found that the amount of fendant shall recover judgment for the discharge the proceeds of the crop sold under the atof the attachment, the court or jury trying said tachment and the damages accruing by reaattachment shall 'assess the damages sustained son of its issuance were at least erual to by the defendant by reason of such attachment, the amount claimed for rents. and the court shall render judgment against the the amount claimed for rents. Upon no plaintiff and his sureties in the attachment bond other theory could a judgment have been renfor the amount of such damages and cost of the dered "upon the issues in favor of the deattachment."

fendant"; and since the judgment was so The statute contemplates that the court rendered, the allegations of the present comor jury, trying the question as to whether or plaint show that the plaintiff had no cause not the writ of attachment should have been

of action, for the plaintiff below was the deissued, must also, in the event that it is de- fendant in the attachment suit, and the damcided there were no grounds for the attach- ages which he now sets up as arising by ment, assess the damages that the defend

reason of the wrongful issuance of the atant may have sustained by reason of the tachment were in issue in the original suit attachment. This court, so far as we are in which the attachment was sued out. advised, has never before decided that this

As judgment was rendered in favor of the provision of the statute is mandatory. Soon defendant in the attachment suit (appellant after the passage of the above statute, how- here) upon the issues in that case, as shown ever, this court, in the case of Holliday Bros. by the appellant's complaint, and as the isv. Cohen, 34 Ark. 707, speaking of the prac- sue of the amount of damages to the defendtice that should obtain under it, had this ant in the attachment suit (appellant here)

was one of the issues to be determined in “There is, however, such an analogy between that case, appellant cannot prosecute anoththe acts of 1875 (the statute now under review) and 1867 that the impression is strong in the er suit and obtain judgment on the same profession, and upon our minds, that the Legis-issue. Ederheimer v. Carson Dry Goods Co., lature meant to return to the policy of the lat- 105 Ark. 488–493, 152 S. W. 142. Appellant's ter act, * * * and to leave it with the court, complaint in the present suit nowhere althrough proper instrumentalities, to settle in one suit the whole of the litigation, arising not only leges that the issue of damages accruing by out of the original cause of action, but also out reason of the wrongful issuance of the atof the bonds executed in its progress. We think tachment was not determined in the original it, therefore, within the equity and spirit of the act, as a matter of practice, that the defendant suit in which the attachment was issued. should have the right, when the plaintiff shall The allegation of the complaint, to the effect fail to bring his suit to final trial, or may fail that “a judgment was rendered upon the

, behalf, to assess the damages which may have issues in favor of the defendant,” shows diaccrued to him from a wrongful attachment in rectly to the contrary. the action, and which had been dissolved. It is But even if appellant's complaint had alcertainly unreasonable, and a bad practice, leged that the damages to him growing out which may lead to great injustice, to have an of the wrongful attachment had not been deassessment of damages, judgment, and execution in favor of defendant, upon an interlocutory termined in the suit in which the attachment trial, when in the end the plaintiff may recover was issued, still a complaint containing such

to say:

Tenn.)

SANFORD-DAY IRON WORKS v. MOORE

373

allegations would have been fatally defec- ployer that, in respect to appliances or places tive, for the provision of the statute that of work furnished by him, he has conformed to “the court or jury trying said attachment character in the district, and though proof of

the usage obtaining among employers of like shall assess the damages sustained by the de conformity to customary usage makes a prima fendant by reason of such attachment" is facie case of nonliability when nothing else apmandatory. While the question as to wheth- pears, this case is subject to be rebutted by proof er or not the statute under consideration was place of work, was one so inherently and fla

that the appliance where set for use, or the mandatory or directory was not the issue be- grantly dangerous that it must have been obfore the court in the case of Holliday Bros. v. viously so to the employer. Cohen, supra, the language of the court in [Ed. Note.-For other cases, see Master and commenting upon the proper practice to be Servant, Cent. Dig. 88 954, 956–958, 960–969,

971, 972, 977; Dec. Dig. Omw278.] followed under the statute as quoted above indicates clearly that the court was of the opin- Certiorari to Court of Civil Appeals. ion that the better practice would be to follow Action by J. R. Moore against the Sanfordthe statute as if its provisions were construed Day Iron Works. A judgment for plaintiff as being mandatory, and not merely direc- was reversed by the Court of Civil Appeals, tory. We so hold now. See, also, Rodgers v. and both parties petition for certiorari. JudgCades, supra. The Legislature couched its ment of the Trial Court reversed, and cause enactment in terms that in their natural and remanded. ordinary signification are mandatory in

Fowler & Fowler and A. Y. Burrows, all meaning, and we can conceive of no good rea- of Knoxville, for plaintiff. Webb & Baker, son why the language should not be so con- of Knoxville, for defendant. strued. On the contrary, from an economic viewpoint and to end litigation, it serves a

WILLIAMS, J. The Sanford-Day Iron wise and useful purpose to have the court or Works, a body corporate, engaged in the jury trying the issue of the attachment to foundry and machinery business in Knoxville, assess the damages that may have accrued

appealed in error from a judgment for personto the defendant by reason of its wrongful al injuries rendered by the circuit court in issuance. [2] II. The allegations of the complaint Court of Civil Appeals, where the judgment

favor of Moore, one of its employés, to the show that when the original cases, originating in the justice court, had reached the cir- was reversed for several errors in the charge cuit court on appeal, appellant moved to have of the trial judge, only one of which will be

treated of in this opinion, the other points the same consolidated and tried as one case. made by the parties under their respective

"The effect of consolidating actions at law is to unite the causes as if the issues had been petitions for certiorari being disposed of originally embraced in one action. The sepa- orally and in a memorandum for judgment rate actions are discontinued and the consolidat- handed down with this opinion. ed action alone left. There can be no procedure

The employé, at the time of his injuries, in either of the actions consolidated, and the case is to be tried as if there had been an ac

was engaged in work as an assistant to one tual consolidation in the declaration, with one Flora at a forging hammer which was operatplea and a single issue." 8 Cyc. 606.

ed by means of a shaft, pulley, and belt, the The allegations of the complaint show that shaft being located about 20 feet above the the suit was for rent of land for a single floor. About 10 months before the accident the year, amounting to the sum of $420. It ap- belt began to run off of the pulley, and Moore pears from this that one suit should have was directed at times, when the regular hand been brought in the first place in the cir- for that purpose was not conveniently near, cuit court, and the conduct of the appellant to ascend and replace it, a ladder being used in moving their consolidation in the circuit for that purpose. The replacement of the court was tantamount to saying that there belt was usually done by Moore while the was only one cause of action, which should shaft was revolving. At a distance of from have been embraced in one suit in the cir- 20 to 28 inches from the pulley was a hanger, cuit court in the first instance, which he now which was held in place by a collar in which treats as so brought. See Lochridge Dry for the security of the collar was a setscrew. Goods Co. V. Daniels Transfer Co., 171 s. This screw had a square head, and projected W. 863.

above, the surface of the collar about oneThe judgment is in all things correct, and half inch or an inch. it is therefore affirmed.

On the day of the injury, Moore was on the ladder engaged in readjusting the belt, when, after it was placed on the pulley, it

immediately flew off, knocking him against SANFORD-DAY IRON WORKS v. MOORE. the rapidly revolving shaft and the setscrew. (Supreme Court of Tennessee. Oct. 30, 1915.) This screw caught his clothing, and he was MASTER AND SERVANT O 278-LIABILITY FOR wound around the shaft and his body bruised

INJURIES CONFORMITY TO CUSTOMARY and mutilated.
USAGE.
A defense conclusive in character is not

The injured employé testified that he had made out by a showing on the part of an em-J never observed the setscrew and did not know it was there; he having always made the ticular line of business is the unbending test adjustment of the belt while the shaft was of nonculpability, thus announced in these revolving.

Pennsylvania cases, in Chattanooga MachinThere was also evidence offered tending ery Co. v. Hargraves, 111 Tenn. 476, 482, 78 to show that projecting setscrews were still S. W. 105, when it quoted the substance of in use in well-regulated shops in the district, the above excerpt from Kilbride v. Carbon, especially on overhead shafting, but there etc., Co., supra. It should be noted, however, was also adduced evidence in behalf of the that it was the plaintiff in that case who employé that such projecting screws were was claiming negligence on the part of the not in general use by prudent operators, and defendant company and who was seeking in well-regulated plants of like character, at to prove that the employer company had not the time the shaft in question was installed, been reasonably careful in that it had failed and that they had been discarded and counter- to practice a method of testing the appliance sunk screws adopted for use in lieu, due to that was in general use in well-regulated the greater safety of the latter.

machine shops, and that was practiced by The trial judge instructed the jury in part experienced and prudent machinists. The in the following language:

court merely held that evidence of such cus"You will bear in mind in this connection that tomary usage was competent to be adduced the law did not require that the defendant use by the plaintiff. It was not ruled that same the very latest and most approved setscrew, unless it was necessary to do so in order to make would be conclusive on the point of defendsaid place reasonably and ordinarily safe. It ant's negligence in favor of the plaintiff. It was sufficient if defendant used such setscrew is one thing to say that an employer may be as was ordinarily in use by well-equipped plants found to be negligent if he fail to conform and machinery of similar character, provided the to a customary usage, and another thing to same was ordinarily safe.”

say that if he conforms he is thereby conUpon an assignment of error of the Ironclusively acquitted of culpability. The phrase Works attacking this portion of the charge now presented was not dealt with in the because of its last and qualifying phrase, the

Hargraves Case. Court of Civil Appeals held that the charge

The Pennsylvania rule on the point has, was erroneous, saying:

however, been adopted in a number of juris“We think the unbending test of plaintiff in dictions. The earlier and some recent cases error's negligence in using said projecting setscrew in its machinery, at the time of the acci- are cited in 3 Labatt, Master and Servant dent, was the ordinary usage of the business." (2d Ed.) § 910. That court quoted from the case of

The doctrine that conformity to common Kilbride v. Carbon, etc., Co., 201 Pa. 552. usage when established is conclusive in the 51 Atl. 347, 88 Am. St. Rep. 829, the language employer's favor has been denied and comof which, on the point under discussion, was batted by the courts in several other juristaken from the earlier and leading case of dictions, and it is believed that an increasing Titus v. Bradford, etc., R. Co., 136 Pa. 618, number of tribunals, as they rule the point, 20 Atl. 517, 20 Am. St. Rep. 944, where it are aligning themselves in opposition to that

view. The protestant view is expressed in was said:

“All the cases agree that the master is not the case involving a projecting setscrew) of bound to use the newest and best appliances. Geno v. Fall Mountain Paper Co., 68 Vt. 568, He performs his duty when he furnishes those of 35 Atl. 475, where this language was used: ordinary character and reasonable safety, and the former is the test of the latter; for, in re- to say that a certain machine upon which an

"It would hardly be a defense for an employer gard to the style of implement or nature of the employé had been injured was one of a kind mode of performance of any work, 'reasonably in common use, if the employer was compelled safe' means safe according to the usages, habits, as a prudent man to admit its use was, in his and ordinary risks of the business. Absolute

own judgment, dangerous. safety is unattainable, and employers are not " "Common use' and 'the care of a prudent insurers. They are liable for the consequences, inan' are not necessarily equivalent terms. That not of danger, but of negligence; and the un- a machine is in common use is at the most a bending test of negligence in methods, machin- circumstance bearing upon the question of negery, and appliances is the ordinary usage of the

ligence. business. No man is held by law to a higher degree of skill than the fair average of his pro- l or even the best in use, and yet its safety in re

"A machine might be of a kind in common use, fession or trade, and the standard of due care is spect to its position or setting in a mill be questhe conduct of the average prudent man. The

tionable. In this case, even if the setscrew test of negligence in employers is the same, and with a projecting head had been the most aphowever strongly they may be convinced that proved kind and in universal use, it could not there is a better or less dangerous way, no jury be held as a matter of law that its employment, can be permitted to say that the usual and ordi- for that reason, would shield the defendant from nary way, commonly adopted by those in the

liability.” same business, is a negligent way for which liability shall be imposed. Juries must necessarily

The same fundamental principle was andetermine the responsibility of individual con- nounced by the Supreme Court of the United duct, but they cannot be allowed to set up a States in Wabash R. Co. v. McDaniels, 107 standard which shall, in effect, dictate the cus; U. S. 461, 2 Sup. Ct. 938, 27 L. Ed. 605,

where Mr. Justice Harlan wrote: It is in behalf of the Iron Works contended

“And to say, as matter of law, that a railroad that this court adopted the principle that corporation discharged its obligation to an em

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