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meaning. We said there that was an unam-, designated as agent upon written notice to biguous contract and that the court should not that effect in case of the agent's violation only have construed it, but should have con- of this contract or in the event of his failstrued it as constituting the relation of buy- ure to satisfactorily discharge these duties er and seller, and not that of principal and under his agreement. The contract now unagent. While this is apparently the same der consideration does not contain the provimedical company which was a party to the sions which we said made those contracts litigation in the last-cited case, it appears ambiguous; and the court should therefore that the contracts set out in the two cases have construed the contract according to its are not identical. We think, however, that unambiguous terms as one for the purchase the contract in the instant case is no more of goods, wares, and merchandise, with a ambiguous than was the contract in the for- guaranty of payment therefor. mer case to which this medical company was The judgment of the court below will a party. The trial court took the opposite therefore be reversed, and, as the sum due is view and permitted the introduction of tes- not in dispute, judgment will be rendered timony which was intended to explain the here for the amount of the note. nature of this contract and which is said to show that the contract was, in fact, one of principal and agent. The evidence in this respect is substantially the same as the testi CLARK v. ST. LOUIS, I. M. & S. RY. mony in the Holcomb Case, supra; but such

CO, et al. (No. 128.) testimony cannot import into a contract an ambiguity where none otherwise exists.

(Supreme Court of Arkansas. Feb. 4, 1918.) It is very earnestly insisted by counsel for 1. RAILROADS ww153–FIRES-LIABILITY. appellee that this case is concluded by the

Under Acts 1907, p. 336, § 1, declaring that opinion of this court in the cases referred to struction of or injury to any property which

a railroad company shall be liable for the deabove in 115 and in 124 Arkansas. But a may be caused by fire or result from any locomocomparison of the contracts set out in those tive, engine, machine, train, car, or other thing cases will disclose a number of points of thereof, or which may result from or be caused

used upon such railroad, or in the operation difference. There are provisions contained by any employé, agent, or servant of such corin the contracts set out in the earlier cases poration upon or in the operation of the railwhich do not appear in the contract now ble, not only for fires set out by its locomotives

road, a railroad company, while absolutely liaunder consideration, and it is these provi- and machinery, but for fires set out by its emsions which we said created the ambiguity ployés while engaged in the work of cleaning or which rendered admissible the parol testi- repairing the roadbed or right of way, is not

absolutely liable for fires which may have spread mony which

was offered to explain this on the railroad right of way, and which its ambiguity. For instance, in the Williams servants have failed to extinguish, or which Case, supra, we said that the jury might may have been lighted thereon by other perhave found :

sons, and which the railroad employés have not

restrained or extinguished, and in such case "That the consignee was not definitely and ab- proof of negligence is essential to recovery. solutely bound, at all events, to pay for the goods. That the consignee could fulfiil his con- 2. RAILROADS 485(8) - FIRES - ACTIONS tract by accounting to the consignor for all INSTRUCTIONS. goods sold and by returning to the consignor

In an action against a railroad company the unsold goods. That the consignee had the for injuries to plaintiff's property from fire, right, under any circumstances, to return any of where the answer set up contributory neglithe consigned goods. That no part of the pur- gence, an instruction that if plaintiff's agent, chase price for the goods became due the con- knowing of the proximity of the fire, negligentsignor except upon a sale made by the con- ly failed to take precautions, verdict should be signee. That the goods were not to be paid for for defendant, notwithstanding negligence on as upon a sale to the consignee, but only upon the part of its servants in leaving the fire on the a sale by the consignee. That the consignee right of way, was proper. was to render regular accounts and reports of 3. RAILROADS (131–Right OF WAY-LEASE the business, showing the amounts and prices

OF PROPERTY. of goods sold, whether sold for cash or credit, the amount of goods on hand and outstanding grounds, tracks, and right of way for the pub

While a railroad company holds its station, accounts. That there was no stipulation either lic use 'for which it is incorporated, yet such to sell or to pay for the goods in a fixed time. That all unsold goods were to be returned to the property is private, and the company may demise consignor when the contract was terminated by such lease does not interfere with its franchise

à temporary use of the right of way where either party."

as a public carrier, and may tend to benefit it. [2] In those cases the purchaser was refer- 4. RAILROADS 133(5)-LEASES—TERMINAred to as an "agent,” and, while we said TION. that his designation as an agent was not con

Where a lease of a portion of a railroad trolling and did not, of itself, render him right of way for a lumber mill provided for ter

mination on 30 days' notice by either party, it such, still it was one of the circumstances to will, it appearing that the lease had not been be considered in determining what that rela- so terminated, be presumed to continue in extion was. We also there pointed out that istence, notwithstanding the operation of the

lumber mill had ceased, and the lease was no the contract gave to the medical company the longer fulfilling its function of developing freight right to terminate the services of the person for the railroad company.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. RAILROADS Om 481(1) – FIRES ACTIONS fense of contributory negligence, and also EVIDENCE.

the provisions of a lease contract which the In an action against a railroad company for destruction of plaintiff's property along the appellees alleged was a bar to appellant's right of way, evidence of a forest fire in the cause of action. vicinity which might have caused the destruc

I. There was testimony from which the tion of plaintiff's property is admissible.

jury might have found that appellant's mill 6. RAILROADS 485(4) - FIRES - ACTIONS INSTRUCTIONS.

was destroyed by fire which originated either In an action for injuries to plaintiff's prop- from appellees' locomotive, or by fire which erty, resulting from fire, where there was evi- originated from some unknown cause, and dence that the fire might have resulted from

was discovered by the section foreman on some cause other than that of the railroad company, an instruction that verdict should be for appellees' right of way near appellant's mill the railroad company if the probabilities were some three or four days before the mill was equal that such fire might have resulted from burned. causes for which the company was not liable

It could serve no useful purpose to set was proper.

out in detail the testimony bearing upon the Appeal from Circuit Court, Clark County; issue as to the origin of the fire, and also Geo. R. Haynie, Judge. Action by James G. Clark against the St. lees servants were negligent in not putting

upon the issue as to whether or not appelLouis, Iron Mountain & Southern Railway out or controlling the fire after discovering Company and others. From a judgment for the same, and also upon the issue as to defendants, plaintiff appeals. Affirmed.

whether or not the fire was caused by Instructions referred to are as follows: appellant's negligence. These were issues

Instruction No. 8A, asked by defendant of fact for the jury. (appellee), was as follows:

[1] The principal question to be determin"If you believe from the testimony that the ed on this appeal is whether or not, under plaintiff had an agent to look after the mill, the act of April 2, 1907, the appellees were and that the agent knew of the fire burning near the mill, and knew, or by the use of ordinary liable to appellant in damages for the loss care could have known, that the same exposed of his mill caused by fire which was known the mill to destruction by fire, and that he failed by the employés of appellees to exist on the to use ordinary care to prevent the same, then your verdict should be for the defendants, not- right of way of the railway company some withstanding you should find that the fire caught three or four days before the mill was de from a fire negligently or carelessly left by de- stroyed, without other proof of negligence. fendants' employés on the right of way, if you believe there was any such fire negligently left The act, in substance, makes railway comon the right of way.”

panies liable for the destruction of or injury Instruction No. 6, asked by defendant (ap- to any property "which may be caused by pellee), was as follows:

fire, or result from any locomotive, engine, "The court instructs you that if the evidence machinery, train, car, or other thing used in this case fails to show how the fire started, upon said railroad or in the operation thereor if from the evidence you believe that it is of, or which may result from, or be caused equally as probable that the fire started from some other cause as that it started from sparks by an employé, agent or servant of such coror cinders from defendants' locomotive, or from poration, company or person upon or in the a fire on the right of way which was negligently operation of such railroad.” And the owner permitted to spread by defendants' employés, then your verdict should be for the defendants." of any such property may recover all such

J. H. Crawford and Dwight H. Crawford, damages, and upon the trial of any suit for both of Arkadelphia, for appellant. E. B. such damages "it shall not be lawful for the Kinsworthy and R. E. Wiley, both of Little defendant in such suit or action to plead or Rock, for appellees.

prove as a defense thereto that the fire

which caused such injury was not the reWOOD, J. Appellant instituted this suit sult of negligence or carelessness upon the against the appellees to recover for damages part of such defendant, its employés, agents to his property, alleging, among other things, or servants; but in all such actions, it shall “that on September 21, 1916, the servants only be necessary for the owner of such and employés of the defendants carelessly property so injured to prove that the fire and negligently kindled a fire on the right of which caused or resulted in the injury origiway of said railway company and from said nated or was caused by the operation of such fire so carelessly and negligently kindled the railroad, or resulted from the acts of the same was negligently allowed to spread and employés, agents or servants of such defendburn and totally consume plaintiff's said prop- ant.” Act 141, Acts of 1907, p. 336, § 1. erty; that if said fire did not spread from the While the language of the act is somewhat right of way as above alleged, it was care involved and ambiguous, yet, when construlessly and negligently allowed to be kindled ed as a whole, it shows that it was the infrom sparks from one of defendant's trains tention of the Legislature to make the railoperated on said railway." The defendants way company liable absolutely in damages denied the allegations of the complaint as for injury to or destruction of property to negligence and set up affirmatively the de- caused by such extraordinary hazards as the

Par For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

operation of a locomotive engine, machinery, , mon-law liability for injury and the consetrains, cars, or other things, when used or quent damage caused by their negligence. operated upon the railroad, or by any of their In Kansas City Sou. Ry. Co. v. Thomas, servants or employés in the operation of 97 Ark, 287, 133 S. W. 1030, a passenger such machinery upon the railroad tracks, or placed his trunk in a railway station, inby the positive affirmative act of the servants tending to take a train the next morning, and or employés of railway companies in the the trunk was burned during the night. The operation of the railroad. The language is origin of the fire was not shown. It was sufficiently broad to include such acts as the not proved that the employés of the railway burning off and clearing up of the right of company set fire to the station. In that case way or roadbed, or such acts as the building it was the contention of the appellee, Thomas, of fires on the right of way or in proximity solutely under the act of 1907, regardless of

that the appellant company was liable abthereto while engaged in the work of repairing the railway track or roadbed for the negligence. We held that the liability of the

railway company, under the facts of that operation of trains. Kansas has a statute to the effect that a its duty was that of a warehouseman, and

case, was not that of an insurer, but that fire caused by the operation of a railroad

its raises a prima facie presumption of negli- it had exercised ordinary care to preserve

ability depended upon whether or not gence on the part of the railroad company. the property that had been intrusted to it. The Supreme Court of Kansas, in constru. The exact question here presented was not ing this statute, among other things, says: before the court in that case, but the opinion

“The statute prescribes a rule in actions for is authority for holding that the act under damages by fire caused by the operation of a railroad, and it is contended that caring for review does not contemplate an absolute the right of way is not within the terms operat- liability upon the part of railway companies ing a railroad." The claim is not tenable. The for injuries by fires that are not caused in statute applies to all cases where the fire results connection with the operation of their trains, from the operation of a railroad. It is not even and that are not shown to have been caused confined to fire escaping from locomotives, but applies to all cases where the damage was caus- by some positive act of the servants or emed by fire arising from any step in the operation ployés. of the road. The roadway and track of the

In Kansas City So. Ry. Co. v. Wilson, 119 company are as essential to the operation of the railroad as the locomotives or the other Ark. 143, 171 S. W. 484, the uamages for equipment.”. Mo. Pac. Ry. Co. v. Merrill, 40 which appellee sued were caused by a fire Kan. 404, 407, 19 Pac. 793, 794.

shown to have been set out by appellant's And in Mo. Pac. Ry. Co. v. Cady, 44 Kan. section men while burning off its right of 633, 24 Pac. 1088, the court says:

way. In that case we said: "The burning of dry grass, weeds, and other

"The liability of the defendant to the plaincombustible material which annually accumu- tiff for the destruction by fire of its pasture lates on the right of way is caring for the road and fence depends: First, upon the proof whethway and track."

er it resulted from its act; and, second, wheth

er the fire resulted from the negligence of the This is the utmost extent of liability which defendant or its servants in burning off its right the Legislature intended to impose in the of way. What would constitute such negligence absence of negligence. There is no language or want of care and prudence as would render in the act to justify the construction that it by fire from its act in burning off its right of

the railroad company liable for the destruction was the intention of the Legislature to make way depends upon the circumstances as they railway companies absolutely liable in dam- existed at the time. * It was the duty ages for fires that were set out or started of the foreman to prevent the fire from escapby others than the servants or employés ing from the right of way of the railroad com

pany. There was no other fire in the neighborof railway companies, or fires that were not hood, and the jury might have inferred that the shown to have been caused by the character section foreman, after burning off the right of of machinery mentioned or by some positive way, went off and negligently left fire burning

there." or affirmative act of the employés in originating the fire which caused the loss of or So, it will be observed that that case was damage to property. In other words, for the disposed of on the theory that the evidence mere omission on the part of the servants was sufficient to show that the employés and employés of railway companies to ex- of the appellant were negligent in going off tinguish or to prevent the spreading of fires and leaving the fire which they had set out on their right of way which were started to burn off the appellant's right of way. The by others, or the origin of which is unknown, question as to whether or not the appellant does not render railway companies absolutely would have been absolutely liable under the liable in damages for the loss caused by such facts of that case was not presented, and fires. For the destruction of, or injury to, therefore we do not regard that case as deproperty caused by such omissions on the cisive of the issue now before the court, and part of the servants and employés of railway as being in favor of the contention of the apcompanies, such companies would be liable, pellees. Nevertheless, in our opinion, the provided such omissions constituted negli language of the statute compels the interpregence upon the part of such employés, but tation which we now give it. in that case the companies would be liable, We find no error, therefore, in the ruling not under the statute, but under their com- of the court in refusing appellant's prayer

201 S.W.-8

*

*

for instructions, which told the jury, in, Vermont R. Co., 77 Vt. 334, 60 Atl. 137, 70 L. effect, that, if the fire was set out by the R. A. 930. appellees' locomotive engines, or in the opera It is held by the authorities generally that tion thereof, or if there was a fire on the a temporary use of the right of way by perright of way which was negligently permit- mission of a railroad company, not interted by the appellees' servants and employés fering with the public use of the right of way to spread and burn the appellant's property, of a railroad, and to end at the will of the the appellees would be liable for the damages railroad company, is not inconsistent with caused thereby.

thé franchise of the public carrier. See Gris[2] II. There was no error in the giving wold v. Ill. Cent. R. Co., 90 Iowa, 265, 57 N. of the appellees' prayer for instruction No. W. 843, 20 L. R. A. 647; Grand Trunk Ry. Co. 8A. (Reporter set out in note.) The defense v. Richardson, 91 U, S. 454, 23 L. Ed. 356. of contributory negligence was set up in the While there was testimony to the effect answer, and there was evidence to warrant that the owner of the mill plant had abanthe court in submitting this issue to the jury, doned, for some years, the manufacture of which was correctly done in the above pray- lumber, and also to the effect that the railer No. 8A.

way company had severed the switch connec[3, 4] III. The court, over the objection tions with the mill plant, this testimony of the appellant, permitted the appellees to was not sufficient to show that the parties introduce a lease contract with the appellant, to the contract had abandoned the same. The by which the railway company agreed to al contract itself prescribed the terms upon low the appellant to build a portion of his which the parties to it might terminate it; mill plant upon the appellees' right of way, that is, by written notice served upon the and in consideration of the reduced rental opposite party 30 days before the termination which appellant was required to pay to the of the contract. There is no evidence to railway company appellant agreed to "waive, show that the contract was terminated in this release, relinquish and abandon” any and manner. As the lease provided that when all claims or rights of action which he might the same was terminated the lessee was to otherwise have by reason of loss or damage remove from the leased premises all the to buildings or other property of the leased buildings and other improvements that had premises by fire, arising from the operation been erected thereon by him, and since these of the railway over and upon or near said improvements had not been removed, the prepremises, "whether said fires be caused by sumption would be that the lease contract sparks from locomotives of said lessor or had not been terminated or abandoned. The in any other manner while this lease con- court was correct in treating the same as in tinues in force." The contract contained existence, and in permitting the same to be a provision that:

read in evidence. “The term shall commence on the day first [5] IV. Witness Armstrong testified, over above written and shall continue until thirty the objection of appellant, that he saw fordays after either said lessor, its successors or est fires along through the woods about half assigns, or said lessee shall serve written notice upon the other party of the desire to terminate a mile from where appellant's mill was lothis lease."

cated, and on the same side of the track that There was a further provision that:

the switch and mill were on; that the woods The “lessee further agrees upon the termina- were unbroken from where he saw the fires tion of this lease to remove from the leased to the mill; that he passed there about 11:30 premises all buildings and other improvements o'clock a. m. before the fire occurred. The erected by lessee thereon and to restore the fire occurred something after 1 o'clock in surface of the ground to the same condition as before said buildings were erected and the im- the afternoon. The fire was running along provements made.”

burning the leaves and grass and stuff on the The undisputed evidence justifies the in- ground. Lots of tree tops were lying around ference that this lease, on account of the there, and the fires were burning up into low rental, was entered into on the part of them. There was heavy smoke all along the railway company in order to promote through that part of the country, between its business as a common carrier. There Britt's and the Little Missouri river. The is no testimony to show that the use which river was south, towards Texarkana, from the lessee made of the property could in any

Britt's. manner interfere with the duties which the

Other witnesses testified that there was a carrier owed the public to transport freight high wind blowing from the direction where and passengers.

the fire was seen in the woods towards the "A railroad corporation holds its station mill plant. It was in the fall of the year and grounds, railroad tracks, and right of way, for very dry. the public use for which it is incorporated, yet This testimony was competent. It was a as its private property, and to be occupied by question for the jury to determine, from this itself or by others in the manner that it may consider best fitted to promote, or not to inter- evidence, in connection with the other evifere with, the public use. It may, in its dis- dence, as to the origin of the fire that caused cretion, permit them to be occupied by others the destruction of appellant's property. It with structures convenient for receiving and de- cannot be said that this testimony was too livering freight upon its road, so long as a free and safe passage is left for the carriage of remote to throw any light upon the origin freight and passengers." Osgood v. Central of the fire. It cannot be said that it was

DENTS.

physically impossible for the fire which Arm- , which Shapard, for the consideration menstrong discovered in the woods to have been tioned, undertook to furnish supplies. In this transmitted by the high winds through the contract Kirby admitted that he was indebtcombustible material intervening to the milled to Maynard's estate in the sum of $410.plant of appellant. The appellees were en- 55, and agreed that the mortgage executed titled to have all the testimony that would by him on the 2d of March, 1916, should retend to shed light upon the probable origin main in full force and effect. The note seof the fire go before the jury, whose sole cured by the deed of trust was indorsed to province it was, under the circumstances, show the amount due thereon. to determine that issue.

On the 2d day of November, 1916, Kirby [6] It follows, therefore, that the court did tendered to the administrator of Maynard's not err in granting the appellees' prayer for estate the sum of $121.90, and presented to instruction No. 6 (Reporter set out in note), him an account against the estate claiming which was based upon the above testimony. that the estate was indebted to him in the

The record presents no reversible error, and the judgment must therefore be affirmed. trator to satisfy the mortgage and cancel the

sum of $288.10, and requested the adminisnote. The administrator refused to do this,

and on the 8th of November appellant instiKIRBY v. WOOTEN. (No. 163.)

tuted suit for the possession of the property (Supreme Court of Arkansas. Feb. 18, 1918.) described in the deed of trust, and on the

same day filed his claim against the Maynard 1. WITNESSES 159(8) COMPETENCY TRANSACTIONS WITH DECEDENT.

estate in the probate court of Lee county, verIn an administrator's action on a chattel | ified as required by law. On December 11, mortgage note, defendant cannot testify that 1916, the claim was disallowed by the prodecedent mortgagee promised to allow him cer- bate court, and an appeal was taken to the tain credits on the note. 2. EVIDENCE 276 – DECLARATIONS-DECE

circuit court. In the circuit court the causes

were consolidated by agreement, and the isIn an administrator's action on a chattel sues were sent to a jury. mortgage note, testimony that witness overheard deceased mortgagee promise to give de- the note and mortgage, and stated that Wilse

Kirby testified, admitting the execution of fendant certain credits on the note was competent.

Wooten was the only one present besides him3. CHATTEL MORTGAGES C 282–FORECLOSURE self and Maynard when the mortgage was ex-SUFFICIENCY OF EVIDENCE.

ecuted; that Wooten was the notary public In an administrator's action on a chattel who took his acknowledgment. He stated mortgage note, evidence that witness overheard the deceased mortgagee promise to give defend that at the time the mortgage was executed ant certain credits on the note, and that the de- he claimed the amount that was due him, the fendant had furnished the decedent with certain amount of the account which he afterwards personal property, made the question whether defendant was entitled to any offsets one for the presented against Maynard's estate, and jury.

Maynard told him it could set la Appeal from Circuit Court, Lee County; He then proceeds to testify as to the correctJ. M. Jackson, Judge.

ness of the various items of the account. He Action by T. C. Wooten, administrator of stated that he was not given credit for the the estate of H. O. Maynard, deceased, work done for and the property furnished to against W. F. Kirby. Judgment for plain- Maynard; that it was mentioned at the time. tiff, and defendant appeals. Reversed and He had paid the balance on the note, less remanded.

these items of credit, except the sum of 55 For several years prior to March, 1916, H. cents, which he admitted was still due on C. Maynard was a merchant at Rondo, Lee the note. He did not get credit on the 2d of county, Ark. For two or three years the ap- March, when he executed the note and mortpellant had been trading with Maynard, and gage to Maynard, but Maynard told him that on the 2d of March, 1916, appellant executed he would give him credit later. The testia deed of trust to secure a balance of $359.- mony of Kirby concerning the items of his 70 for past indebtedness due Maynard, and al- account and the transactions had with Mayso for supplies to be furnished to make the nard was objected to by the attorney reprecrop for the year 1916. Kirby executed a senting the administrator of Maynard's esnote in the sum of $500. The deed of trust

tate. embraced certain personal property. A short

Witness Wooten testified that he was prestime after the deed of trust was executed ent and heard part of the conversation beMaynard died intestate, and T. C. Wooten tween Maynard and Kirby at the time the was appointed his administrator. On the mortgage was executed, and heard Maynard 24th of April, 1916, a contract was entered in- tell Kirby that he would give him the credits to between the administrator and Kirby and later on in the fall in settlement for what one T. L. Shapard by which Kirby released was owing to him; told Kirby to make up a the administrator from carrying out May. list of what he (Maynard) owed him, and that nard's contract to furnish supplies, and by he would give him credit later on.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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