Action by T. E. Day against Henry Quell-, below to show that the agent of Day knew malz Lumber & Manufacturing Company. that the sale was to take place on the day From a judgment for plaintiff, defendant advertised and invited it to bid at the sale. appeals. Appeal dismissed.

C. T. Bloodworth, of Corning, for appellant. G. B. Oliver, of Corning, for appellee.

HART, J. T. E. Day sued the Henry Quellmalz Lumber & Manufacturing Company in replevin to recover 42 stacks of lumber containing about 95,000 feet and alleged to be of the value of $1,000. The lumber and manufacturing company defended on the ground that it had bought the lumber at an attachment sale made after the attachment of the lumber had been sustained and judgment had been rendered against Day in favor of the Federal Lumber Company. The material facts are as follows:

There was a trial before a jury, and a verdict was rendered in favor of Day for the 100,000 feet of lumber sued for, and its value fixed at $602.40, after deducting the amount paid by the defendant at the sale. Judgment was rendered in favor of the plaintiff against the defendant for this amount on the 3d day of April, 1917, which was the 2d day of the term. On September 24, 1917, the defendant prayed an appeal to the Supreme Court which was granted by the clerk of the court. On the 26th day of November, 1917, the appellee filed a motion under section 1227 of Kirby's Digest to dismiss the appeal on the ground that the appellant's right of further prosecuting the sale had ceased. In support of his motion In the fall of 1914, the Federal Lumber the appellee introduced a certified copy of Company sued T. E. Day on an account, the circuit court order, sustaining his excepand had an attachment issued on the ground tions to the report of the sale of the lumber that Day was a nonresident of the state of and ordering that the sale be set aside and Arkansas. The attachment was levied on held for naught. This judgment of the cirthe lumber in controversy, which was stack-cuit court was rendered on the 11th day of ed on his mill-yard. In December, 1914, Day was in the state of Arkansas, and the April, 1917, being the 9th day of the April Federal Lumber Company obtained personal service upon him. The Federal Lumber

Company obtained judgment against Day for the amount sued for, and the attachment was sustained. The lumber in controversy was advertised to be sold under the attachment on the 12th day of February, 1915.

term. No appeal was taken from that order. A consideration of the motion was de

ferred by this court until the case on appeal

was ready for hearing.

Counsel for appellant in his brief has not questioned the finding of the jury on the value of the lumber in controversy but seeks to reverse the judgment on the ground that the sale under which it purchased was a

valid one.

Under

an appeal. Hopson v. Frierson, 106 Ark. 292, 152 S. W. 1008; Bolen v. Cumby, 53

Ark. 514, 14 S. W. 926.

According to the testimony of Day, on the Saturday before the sale was to occur, he arranged with the attorney of the Federal [1] It becomes our duty first to dispose of Lumber Company to draw a draft on him for the balance of the judgment against him the motion to dismiss the appeal. and to stop the sale. Thinking this arrange- section 1227 of Kirby's Digest evidence of ment would be carried out, he paid no fur-facts outside the record, occurring after the ther attention to the matter, and was not rendition of the judgment, and showing that present on the day of the sale. The Federal appellant's further right of prosecuting an Lumber Company proceeded with the sale on appeal has ceased, may be received and conthe 12th day of February, 1915, and the Hen-sidered by this court on a motion to dismiss ry Quellmalz Lumber & Manufacturing Company became the purchaser of the lumber at the sale, for the sum of $214. This amount was immediately paid to the constable, who turned the property over to the defendant in this action. On Monday the 15th of February, 1915, the defendant began to move the property. On the 16th day of February, 1915, Day instituted this action in replevin to recover the lumber. A forthcoming bond was given by the defendant, and it retained possession of the lumber and sold it. A report of sale was filed in the justice court on March 20, 1915, and on the same day Day filed his exceptions to the report, which were overruled by the court and the sale approved. On March 25, 1915, Day filed an affidavit for appeal. His appeal was granted, and the transcript lodged in the circuit court on the 27th day of March, 1915. The defendant adduced evidence in the court

[2-5] It will be remembered that the judgment in the present case was rendered on the 3d day of April, 1917, and that the judgment sustaining exceptions to the sale of the lumber under the order from the justice of the peace and setting the sale aside was made on the 11th day of April, 1917. No appeal has been taken from that order. The sole question to be determined in this appeal is as to whether or not the lumber belongs to Day. Adjudication of the question was settled against the appellant by the order setting aside the sale of the lumber which was rendered subsequent to the judg ment in the present case. That adjudication is conclusive against the appellant, and bars the further prosecution of his appeal. It was a final adjudication of the only question

HONEA V. AMERICAN COUNCIL, NO. 27, cery court and the Court of Civil Appeals

The laws of the funeral benefit departWhere the right to a funeral benefit against ment provide, in section 23, for an appeal a fraternal order is involved, the beneficiary from a refusal of the secretary manager of may sue without appealing to the judicatories within the order, though the by-laws provided the national council to pay a death claim, for appeals therein, if they did not expressly in- and that within 60 days from the decision a hibit suit in the courts before exhaustion of the remedies within the order. 3. INSURANCE 761

Many months prior to March 15, 1915, Honea defaulted in the payment of dues, and was suspended. In the early part of that year he made application for membership in the order by way of reinstatement. He was thus admitted into the local council on March 15, 1915, but the evidencing papers were not forwarded by the local officer to the headquarters in Pittsburgh, Pa., until the 18th. They were not received there, so that Honea's name could be enrolled, until the 20th. Between March 15th and the 20th he was confined to his bed by reason of the illness that led to his death on March 26th. I state Commerce.]

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

2. COMMERCE ~27(7) — RAILROADS - USE OF ENGINE IN "INTERSTATE COMMERCE."

Where a locomotive was habitually and exclusively used in interstate train movements, and not designated for any intrastate or mixed use, an employé working upon it was engaged in interstate commerce.

3. COMMERCE 27(7)-RAILROADS-FEDERAL EMPLOYERS' LIABILITY ACT "INTERSTATE COMMERCE.”

exclusively and habitually in runs north from Oakdale to Danville. Narrow bridges to the south prevented the use of that class in journeys to Chattanooga, Tenn., the next division point in that direction. Engine No. 813 had come in from Danville pulling train No. 15, and after lying at Oakdale for 13% hours was to pull return train No. 16 to Danville. In the meantime the accident to Morgan happened.

Where an engine had been specifically designated for a certain interstate train, and a hostler was told to fire and prepare the engine for such train, and while doing so was injured, he was engaged in interstate commerce within the federal Employers' Liability Act. 4. MASTER AND SERVANT 286(32)—NEGLI- some time. When the hostler returned and GENCE QUESTION FOR JURY.

Where an engine hostler was struck and injured by the dropping of a hood on a smokestack by an inspector of equipment, the question of negligence of the company was one of fact for the jury, on the inference that the inspector or his helpers, if exercising due care, would have seen the hostler and avoided the injury.

It appears that in firing the engine a blowpipe was used, and that it was inserted by Morgan in the smokestack and left for

was removing the blower, it struck against the stack, and one of its sections became detached and fell back into the boiler. Morgan then went to get Jones, the boilermaker of defendant, to supervise opening a door in the head of the boiler in order to admit of

5. MASTER AND SERVANT 228(1)-CONTRIB- a helper going in and recovering this detachUTORY NEGLIGENCE NOT PRECLUDING RE

WILLIAMS, J. This suit was brought by Morgan to recover damages for personal injuries; the action being founded on the federal Employers' Liability Act. He was granted a judgment based on the verdict of a jury in the circuit court, after a motion of the defendant railway company for peremptory instructions had been overruled. On appeal the Court of Civil Appeals, reversing the judgment, sustained the motion for instructed verdict, and dismissed the suit.

A petition for certiorari was filed by Morgan under which we ordered and have heard oral argument.

ed section of pipe.

It appears that the inspector of equipment who was engaged in inspecting a nearby engine saw Morgan leave engine No. 813, and the inspector proceeded to the latter lomechanical equipment, as was his duty after comotive to test its air appliances and other it had been fired up. There is some evidence

to the effect that an assistant was on the

cab of engine 813 with the inspector-on the left side. While the inspectors were on the cab of the engine, Morgan, Jones, and a helper returned, and after the boilerhead had been opened Morgan ascended the pilot and was standing in front of the smokestack, where, leaning over, he reached down to receive the section of the blower pipe as it would be handed up to him by the helper who had crawled within. In this position Morgan was struck by a heavy oval metal hood which was attached to the smokestack for use as a fender to protect the enginemen from gusts of smoke and cinders as the locomotive ran through tunnels on defendant's line of railway. This hood was suddenly moved in his test of its working condition by the inspector from his place in the cab. The inspector did not know of the presence of Morgan on the boiler when he turned the valve that operated the hood. He could only have seen Morgan by putting his own head out of the cab window. He was on the right side; but his helper was on the opposite side, and Morgan stood toward the left side of the smokestack.

An underlying question is whether Morgan was employed at the time he was injured in work which brings his case within the act of Congress upon which it is based. On the fundamental question we are of He was a hostler in the yards of the rail- opinion that Morgan was, at the time he was way company at Oakdale, Tenn., which is a injured, engaged at a task that falls within division terminal. He was engaged at night the scope of the federal Employers' Liability work, firing engine No. 813, which by bulle- Act. All that he did looked to the firing of tin announcement or by a call (known to the engine and turning it over in proper conMorgan) had been designated to pull an in-dition to be attached to and as a part of terstate passenger train from Oakdale to an interstate train.

Danville, Ky. Engines of its class-the 800 [1] Each case based on the act must be class-were to all intents and purposes used decided in the light of its own facts, and

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

es.

necessarily there arise many border-line cas-, R. Co., 166 N. C. 24, 81 S. E. 1003; Smiegil The test by which to determine whether, v. Great Northern R. Co., 165 Wis. 57, 160 at the time of a given injury, the employé N. W. 1057; Richey on Federal Emp. Liawas engaged in an interstate commerce trans- bility (2d Ed.) § 40. action is: Was his act one which was SO [3] (b) It appears, further, that there was directly and immediately connected with a specific designation of the engine in quessuch business as substantially to form a tion for an interstate journey before Morgan Would the benefits of the part or a necessary incident thereof? New began to fire it. York Cent., etc., R. Co. v. Carr, 238 U. S. act be denied to the regular fireman who 260, 35 Sup. Ct. 780, 59 L. Ed. 1298. followed Morgan by a few minutes and who, let us assume, was injured while engaged in opening the furnace door to replenish the fire before the engine was moved; or again, to the engineer while in the act of pulling the throttle? We can see no substance in any attempted distinction. If one of three be so engaged in interstate commerce, so are the other two.

In order to bring the employé within the protection of the act, it is not necessary that he be directly engaged in an interstate train movement, since his task may be but an incident, preliminary but necessary, to that movement. In Norfolk & Western R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172,

the employé whose action was sustained was injured while piloting a locomotive through the yard, by walking ahead of it, to the main track, where it was to be attached to

an interstate train.

[2] The railway company mainly relies upon the recent case of Minneapolis & St. L. R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, where it was held that a machinist's helper engaged in the making of repairs in a roundhouse upon an engine which had been used in hauling trains which had carried both intrastate and interstate freight, and which was used in like service after the accident, was not then employed in interstate commerce within the meaning of the act. It was said:

"An engine, as such is not permanently devoted to any kind of traffic and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events."

Certain it is that under the ruling of the Supreme Court of the United States, a distinction cannot be founded on the fact that a hostler is one engaged in taking preparatory steps, or doing work that is preliminary to an interstate train trip. In North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, it was recognized that work in preparing instrumentalities of interstate commerce for immediate use therein is so intimately related to such commerce as to become a part of it. It was said:

"It is argued that because, so far as appears, deceased had not previously participated through cars had not as yet been attached to in any movement of interstate freight, and the his engine, his employment in interstate commerce was still in futuro. It seems to us, firing, and preparing his engine for the trip to however, that his acts in inspecting, oiling, Selma were acts performed as a part of interinterstate freight cars had not yet been coupled state commerce, and the circumstance that the up is legally insignificant."

See, also, Southern R. Co. v. Puckett, 244 U. S. 571, 37 S. Ct. 703, 61 L. Ed. 1321, and cases cited; Byram v. Ill. Cent. R. Co., 172 Iowa, 631, 154 N. W. 1006; Staley v. Ill. Cent. R. Co., 268 Ill. 356, 109 N. E. 342, L. R. A. 1916A, 450; Lloyd v. North Carolina R. Co., supra; Hinson v. Atlanta, etc., R.

Co., 172 N. C. 646, 90 S. E. 772.

We understand this to mean that an en- The character of the engine, therefore, did gine may be designated or "destined" for in- not depend on any probability or upon any terstate business, so as to bring one engaged accidental later event. The test event of desat work on it within the protection of the ignation preceded Morgan's going upon it, act, even before it begins to move on an in- and we think firmly fixed its status as an interstate journey. We are of opinion that strumentality of interstate commerce, so far such designation is to be found in this case as his rights are concerned. How else could in either of two aspects: Morgan have viewed it after having been (a) The locomotive was habitually and ex-directed to fire the locomotive for a trip to clusively used in interstate train movements, Danville, Ky.? The chance that there would and such use involves an initial designation be a countermand of the order of designation which continues to impress upon the engine the character of an instrumentality of interstate commerce until by some affirmative act of the railway company it is diverted into an intrastate or mixed channel. Baltimore, etc., R. Co. v. Darr, 204 Fed. 751, 124 C. C. A. 565, 47 L. R. A. (N. S.) 4; Law v. Ill. Cent. R. Co., 208 Fed. 869, 126 C. C. A. 27, L. R. A. 1915C, 17; Lloyd v. Southern

was itself if a probability, then one too remote for consideration, as a practical question; and until in fact given Morgan's status for recovery, it seems, would not be changed. At the moment of the injury that status was one controlled by the act.

The Court of Civil Appeals erred, therefore, in holding that Morgan was not engaged in a work of interstate commerce when injured.