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that the only other person employed in the office was a young man who was a stenographer, and that he did not have authority to settle damage claims. A veterinary surgeon who had been employed by the claim adjuster to examine the stock testified that he cut open the dead mule, and that the mule had died of colic. He also stated that he had examined the remainder of the stock, and that none of them was injured. Another witness for the railroad company testified that he was in a car with stock of his own from Russellville to Argenta, that the plaintiff's stock were in a car near to the one in which he rode, and that he heard the plaintiff's animals biting and fighting each other on the way down. He admitted, however, that there was some switching after the train arrived at Argenta, and that he did not know what occurred there. The jury returned a verdict for the plaintiff in the sum of $170, and the defendant has appealed. Other facts will be referred to in the opinion. E. B. Kinsworthy and W. G. Riddick, both of Little Rock, for appellant. Carmichael, Brooks, Powers & Rector, of Little Rock, for appellee.

HART, J. (after stating the facts as above). [1] There was a clause in the bill of lading which required the plaintiff to give written notice of any claim for damages for injury to his stock while in transit, and it is the contention of the railway company that the judgment must be reversed because the plaintiff failed to give the written notice of his intention to claim damages for the alleged injury to his stock. This court has held that the provision of the contract requiring that the shipper give written notice of the place and nature of the injuries to the nearest station or other agent of the carrier may be waived by the railway company. The reason given therefor is that the object of requiring notice of the place and nature of the injuries is to give the carrier an opportunity for a full and fair investigation of such injuries when and where it will be most certain, easy, and expeditious. The notice is required to be in writing, so that the nature of the shipper's grievance may be definitely and clearly stated. St. L., I. M. & S. Ry. Co. v. Jacobs, 70 Ark. 401, 68 S. W. 248; St. L. & S. F. R. Co. v. Vaughan, 88 Ark. 138, 113 S. W. 1035; St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154, 115 S. W. 933; St. L., I. M. & S. Ry. Co. v. Shepherd, 113 Ark. 248, 168 S. W. 137.

[2] In the present case it is insisted that there is not sufficient testimony to warrant the jury in finding that the written notice was waived by the railroad company, but we cannot agree with the contention of counsel in this respect. It is true the agent whose duty it was to settle claims of this sort testified that there was no one in his office who had authority to settle such claims except himself, and stated that he denied liability

to the plaintiff the first time he talked to him. This agent also stated that where an animal was killed or died in transit it was his custom to have a veterinary surgeon examine the dead animal to ascertain the cause of its death if possible, and also to examine the remainder of the shipment to see if any of the other stock were injured. On the other hand, the plaintiff testified that as soon as he discovered that his stock had been injured he went to the station agent and gave him verbal notice of the injury and of the fact that he would claim damages therefor. The station agent directed him to a certain office in Little Rock where he might put in a claim for damages. He went over to Little Rock and employed a lawyer, and with his lawyer went to the office to which he had been directed by the station agent. He there met a young man in charge of the office, who entered into negotiations with him looking to an adjustment of his claim, and who actually went over to Argenta and examined the injured stock for that purpose. This person admitted the liability of the railroad company and promised to settle the loss with the plaintiff. Though the claim agent testified that the young man did not have authority to adjust the loss, we think, under the circumstances, that the jury were warranted in finding that he did have such authority. He was left in charge of the office by the person whose duty it was to settle such claims, and actually entered into negotiations looking to a settlement of them. Though the claim agent testified that he always sent a veterinary surgeon to examine live stock for injuries, still the jury might have inferred that he sent the veterinary surgeon in question because his office had been notified that the stock had been injured and of the plaintiff's intention to claim damages.

[3] It was next contended by counsel for the defendant that there is not sufficient testimony to warrant the verdict or the amount thereof. We do not agree with them in this contention. The contract provided that the amount of damages to be recovered for a dead animal should not exceed $100. Under this clause of the bill of lading, though the mule killed in transit was worth more than $100, the plaintiff was limited in his recovery to that amount. According to the plaintiff's testimony, the injuries to the other stock amounted to $170, and the jury returned a verdict in his favor for that amount. It is evident, therefore, that the jury did not allow him anything for the dead mule which the testimony of the veterinary surgeon showed to have died of colic, and that he was given a verdict only for the injured stock. The plaintiff's testimony as to the amount of the damages sustained by the stock is corroborated by other witnesses. Though the witnesses did not take up each head of the stock in detail and state the amount of the damage, they did state that several head of

the stock were injured, and in the ones they shows that the case was tried on this theory, did undertake to testify specifically about they placed the damage at as much or a greater amount than that testified to by the plaintiff.

There was a dispute between the witnesses as to how the stock received their injuries, and this dispute was settled in favor of the plaintiff.

On the one hand, the conductor of the train testified that there were no unusual jolts or jars to the train while it was in transit from Russellville to Argenta. He also denied that he examined the stock after the train arrived at Argenta, but in this he is flatly contradicted by the plaintiff. The plaintiff testified that he and the conductor examined the fied that he and the conductor examined the stock after the train arrived at Argenta, and stated that the stock were then in good condition. He did not claim any damages for He did not claim any damages for injuries alleged to have been sustained during the trip from Russellville to Argenta. On the other hand, he bases his right of action solely on the fact that the injuries to the stock were received after the train arrived at Argenta. The testimony shows that some switching was done with the car after it was set on the side track, and that when the plaintiff next saw the stock in the stockyards the next morning they were injured as testified to by him. Although the railroad company introduced testimony tending to contradict the plaintiff in this respect, we think there was sufficient testimony to warrant the jury in finding that the stock were injured after the train had arrived in Argenta, and before the plaintiff saw them the next morning. The jury might have inferred that they were injured while the car was switching around in the yards at Argenta or while being unloaded by the railroad company. A witness for the plaintiff had testified that he had had considerable experience in shipping stock, and that the injuries to the stock were not from biting or kicking.

[4] Finally it is contended by counsel for the railroad company that the court erred in refusing to instruct the jury that the burden of proof was upon the plaintiff to prove all the material allegations of the complaint. They contend that the court should have given this instruction because the plaintiff accompanied the shipment of stock, and on that account was in a position to know in what place and in what manner they received their injuries, and that therefore the burden of proof was upon him. We do not deem it necessary to decide this question. As we have already seen, the plaintiff based his right of action solely on the ground that the stock received their injuries after the train had arrived in Argenta, and after he had left the train. He testified positively that he and the conductor examined the stock after the train had arrived at Argenta, and that they were then in good condition. The record

and that counsel for the railroad company were not misled in regard thereto. Under these circumstances it cannot be said that the rule contended for by counsel for the defendant as to the burden of proof obtains, even if it is the correct rule.

The judgment will be affirmed.

DAVIDSON v. MAYHUE et al. (No. 157.) (Supreme Court of Arkansas. Oct. 11, 1915.) 1. ATTACHMENT 366-WRONGFUL ATTACHMENT ASSESSMENT OF DAMAGES.

Under Kirby's Dig. § 381, declaring that in actions of attachment in which the defendant shall procure a discharge the court trying the attachment shall assess the damages and render judgment against plaintiff and his sureties, judgment for wrongful attachment in an action for rent where crops were attached should be rendered in the attachment action, for not only is the statute mandatory, but the jury must there determine the amounts in issue.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 1339-1342, 13792; Dec. Dig. m366.]

2. ATTACHMENT 343 - ACTIONS ON SEPARATE BONDS-CONSOLIDATION-EFFECT.

Where two attachments for rent begun in justice court were consolidated on appeal to the circuit court on defendant's motion, the separate action left alone, so that no separate action on actions were discontinued, and the consolidated the attachment bonds could be maintained.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 1233, 1235-1237; Dec. Dig. 343.]

Appeal from Circuit Court, Independence County; Dene H. Coleman, Judge.

Action by W. L. Davidson against Maggie Mayhue and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This suit was instituted by the appellant against the appellees February 23, 1915. The complaint alleged that Maggie Mayhue instituted attachment suits against W. L. Davidson before a justice of the peace, one suit being for the sum of $200 and the other for the sum of $220, money alleged to be due for rent on certain lands for the year 1912; that attachments were issued and a bond executed in each case by Maggie Mayhue, with W. A. Mayhue as surety, the bonds being in double the amount sued for; that on the 9th day of November, 1912, there was a trial in each case, and the attachments were sustained, and judgment rendered against Davidson for the respective amounts claimed; that Davidson took an appeal to the circuit court; that in the circuit court, on motion of Davidson, the two cases were consolidated and tried as one case; that judgment was rendered, upon the issues, in favor of the defendant in the attachment suits (who is plaintiff here), dismissing the attachments, with judgment for costs, etc.; that Maggie Mayhue, plaintiff in the attachment suits, and her bondsman, W. A. Mayhue, are liable to the plaintiff, Davidson, by reason of the wrongful attachment proceedings, in the sum

of $980, setting out the items constituting the damages. The prayer was for judgment in favor of plaintiff against Maggie Mayhue and W. A. Mayhue in the sum of $980, with interest, costs, etc.

a larger sum on his debt, and find the defendant insolvent. One trial should settle all, and damages may be set off when fixed, and a final judgment rendered on one or the other side for a balance."

In the recent case of Rodgers v. Cades, 103 Ark. 187, 146 S. W. 507, we held:

it was error to refuse to permit the jury to assess whatever damages defendant sustained by reason thereof."

The defendants demurred to the complaint, 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 damages which he alleged occurred by reason of the attachment suits should have been determined in those suits. The court sustained the demurrer and plea in bar of the action, and, the plaintiff refusing to plead further, the court rendered judgment dismissing his complaint and for costs in favor of the defendants. The plaintiff duly prosecutes his appeal to this court.

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WOOD, J. (after stating the facts as above). [1] The court did not err in dismissing appellant's complaint. Section 381 of Kirby's Digest provides:

"In all actions of attachment in which the defendant shall recover judgment for the discharge of the attachment, the court or jury trying said attachment shall assess the damages sustained by the defendant by reason of such attachment, and the court shall render judgment against the plaintiff and his sureties in the attachment bond for the amount of such damages and cost of the attachment.".

The statute contemplates that the court or jury, trying the question as to whether or

not the writ of attachment should have been

issued, must also, in the event that it is decided there were no grounds for the attachment, assess the damages that the defendant may have sustained by reason of the attachment. This court, so far as we are advised, has never before decided that this provision of the statute is mandatory. Soon after the passage of the above statute, however, this court, in the case of Holliday Bros. v. Cohen, 34 Ark. 707, speaking of the practice that should obtain under it, had this to say:

The complaint in the present case shows that:

"A judgment was rendered upon the issues in favor of the defendant Davidson, and dismissing the attachment, with costs."

It appears from the complaint in this case that the original suit of appellee Maggie Mayhue against the appellant, Davidson, in which the attachment was issued, was for also sets forth that the crops on the leased rents, setting up the amount. The complaint

ground had been taken and sold under the attachment proceedings. Since the judgment was rendered in favor of the defendant, the court or jury trying the issues of that case, as they should have been tried under the law, must have found that the amount of the proceeds of the crop sold under the attachment and the damages accruing by reason of its issuance were at least equal to the amount claimed for rents. Upon no other theory could a judgment have been rendered "upon the issues in favor of the defendant"; and since the judgment was so rendered, the allegations of the present complaint show that the plaintiff had no cause of action, for the plaintiff below was the defendant in the attachment suit, and the damages which he now sets up as arising by reason of the wrongful issuance of the attachment were in issue in the original suit in which the attachment was sued out.

As judgment was rendered in favor of the defendant in the attachment suit (appellant here) upon the issues in that case, as shown by the appellant's complaint, and as the issue of the amount of damages to the defendant 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 out of the original cause of action, but also out of the bonds executed in its progress. We think it, therefore, within the equity and spirit of the act, as a matter of practice, that the defendant. should have the right, when the plaintiff shall fail to bring his suit to final trial, or may fail otherwise, to have a jury summoned on his own behalf, to assess the damages which may have accrued to him from a wrongful attachment in the action, and which had been dissolved. It is certainly unreasonable, and a bad practice, which may lead to great injustice, to have an assessment of damages, judgment, and execution of the wrongful attachment had not been dein 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

leges that the issue of damages accruing by reason of the wrongful issuance of the attachment was not determined in the original suit in which the attachment was issued. The allegation of the complaint, to the effect that "a judgment was rendered upon the issues in favor of the defendant," shows directly to the contrary.

But even if appellant's complaint had alleged that the damages to him growing out

of work furnished by him, he has conformed to character in the district, and though proof of the usage obtaining among employers of like conformity to customary usage makes a prima facie case of nonliability when nothing else appears, this case is subject to be rebutted by proof place of work, was one so inherently and flathat the appliance where set for use, or the grantly dangerous that it must have been obviously so to the employer.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. 278.]

Certiorari to Court of Civil Appeals.

allegations would have been fatally defec- | ployer that, in respect to appliances or places tive, for the provision of the statute that "the court or jury trying said attachment shall assess the damages sustained by the defendant by reason of such attachment" is mandatory. While the question as to whether or not the statute under consideration was mandatory or directory was not the issue before the court in the case of Holliday Bros. v. Cohen, supra, the language of the court in commenting upon the proper practice to be followed under the statute as quoted above indicates clearly that the court was of the opinion that the better practice would be to follow the statute as if its provisions were construed as being mandatory, and not merely directory. We so hold now. See, also, Rodgers v. Cades, supra. The Legislature couched its enactment in terms that in their natural and ordinary signification are mandatory in meaning, and we can conceive of no good reason why the language should not be so construed. On the contrary, from an economic viewpoint and to end litigation, it serves a wise and useful purpose to have the court or jury trying the issue of the attachment to assess the damages that may have accrued to the defendant by reason of its wrongful

issuance.

[2] II. The allegations of the complaint show that when the original cases, originating in the justice court, had reached the circuit court on appeal, appellant moved to have the same consolidated and tried as one case. "The effect of consolidating actions at law is to unite the causes as if the issues had been originally embraced in one action. The separate actions are discontinued and the consolidated action alone left. There can be no procedure in either of the actions consolidated, and the case is to be tried as if there had been an actual consolidation in the declaration, with one plea and a single issue." 8 Cyc. 606.

The allegations of the complaint show that the suit was for rent of land for a single year, amounting to the sum of $420. It appears from this that one suit should have been brought in the first place in the circuit court, and the conduct of the appellant in moving their consolidation in the circuit court was tantamount to saying that there was only one cause of action, which should have been embraced in one suit in the circuit court in the first instance, which he now treats as so brought. See Lochridge Dry Goods Co. v. Daniels Transfer Co., 171 S. W. 863.

Action by J. R. Moore against the SanfordDay Iron Works. A judgment for plaintiff was reversed by the Court of Civil Appeals, and both parties petition for certiorari. Judgment of the Trial Court reversed, and cause remanded.

Fowler & Fowler and A. Y. Burrows, all of Knoxville, for plaintiff. Webb & Baker, of Knoxville, for defendant.

WILLIAMS, J. The Sanford-Day Iron Works, a body corporate, engaged in the foundry and machinery business in Knoxville, appealed in error from a judgment for personal injuries rendered by the circuit court in favor of Moore, one of its employés, to the

Court of Civil Appeals, where the judgment was reversed for several errors in the charge treated of in this opinion, the other points of the trial judge, only one of which will be made by the parties under their respective petitions for certiorari being disposed of orally and in a memorandum for judgment handed down with this opinion.

The employé, at the time of his injuries, was engaged in work as an assistant to one Flora at a forging hammer which was operated by means of a shaft, pulley, and belt, the shaft being located about 20 feet above the floor. About 10 months before the accident the belt began to run off of the pulley, and Moore was directed at times, when the regular hand for that purpose was not conveniently near, to ascend and replace it, a ladder being used for that purpose. The replacement of the belt was usually done by Moore while the shaft was revolving. At a distance of from 20 to 28 inches from the pulley was a hanger, which was held in place by a collar in which for the security of the collar was a setscrew. This screw had a square head, and projected above the surface of the collar about one

The judgment is in all things correct, and half inch or an inch. it is therefore affirmed.

SANFORD-DAY IRON WORKS v. MOORE.
(Supreme Court of Tennessee. Oct. 30, 1915.)
MASTER AND SERVANT 278-LIABILITY FOR
INJURIES CONFORMITY TO CUSTOMARY
USAGE.

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 the rapidly revolving shaft and the setscrew. This screw caught his clothing, and he was wound around the shaft and his body bruised and mutilated.

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- 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:

"You will bear in mind in this connection that the law did not require that the defendant use the very latest and most approved setscrew, unless it was necessary to do so in order to make said place reasonably and ordinarily safe. It was sufficient if defendant used such setscrew as was ordinarily in use by well-equipped plants and machinery of similar character, provided the same was ordinarily safe."

Upon an assignment of error of the Iron Works attacking this portion of the charge because of its last and qualifying phrase, the Court of Civil Appeals held that the charge was erroneous, saying:

"We think the unbending test of plaintiff in error's negligence in using said projecting setscrew in its machinery, at the time of the accident, was the ordinary usage of the business."

That court quoted from the case of Kilbride v. Carbon, etc., Co., 201 Pa. 552, 51 Atl. 347, 88 Am. St. Rep. 829, the language of which, on the point under discussion, was taken from the earlier and leading case of Titus v. Bradford, etc., R. Co., 136 Pa. 618, 20 Atl. 517, 20 Am. St. Rep. 944, where it

was said:

court merely held that evidence of such customary usage was competent to be adduced by the plaintiff. It was not ruled that same would be conclusive on the point of defendant's negligence in favor of the plaintiff. It is one thing to say that an employer may be found to be negligent if he fail to conform to a customary usage, and another thing to say that if he conforms he is thereby conclusively acquitted of culpability. The phrase now presented was not dealt with in the Hargraves Case.

The Pennsylvania rule on the point has, however, been adopted in a number of jurisdictions. The earlier and some recent cases are cited in 3 Labatt, Master and Servant (2d Ed.) § 940.

The doctrine that conformity to common usage when established is conclusive in the employer's favor has been denied and combatted by the courts in several other jurisdictions, and it is believed that an increasing number of tribunals, as they rule the point, are aligning themselves in opposition to that view. The protestant view is expressed in the case (involving a projecting setscrew) of Geno v. Fall Mountain Paper Co., 68 Vt. 568, 35 Atl. 475, where this language was used:

"It would hardly be a defense for an employer to say that a certain machine upon which an employé had been injured was one of a kind in common use, if the employer was compelled as a prudent man to admit its use was, in his own judgment, dangerous.

""Common use' and 'the care of a prudent man' are not necessarily equivalent terms. That a machine is in common use is at the most a circumstance bearing upon the question of negligence.

"All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of implement or nature of the mode of performance of any work, 'reasonably safe' means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the 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 customs or control the business of the community." 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 emconformity to the common usage in the par-ployé-in respect of the fitness of coemployés

"A machine might be of a kind in common use, or even the best in use, and yet its safety in respect to its position or setting in a mill be questionable. In this case, even if the setscrew with a projecting head had been the most approved kind and in universal use, it could not be held as a matter of law that its employment, for that reason, would shield the defendant from liability."

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