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against an assignee of a note who purchased | top of the 42-foot mast was not assumed by with notice of the facts concerning the cona servant engaged in hooking the logs to be lifted, as the defects were not obvious, so that sideration, but not against an innocent pur- he was required to take notice thereof, and chaser for value before maturity of a nego- were not risks ordinarily incident to the emtiable note." Clark v. Hershy, 52 Ark. 473, ployment. 12 S. W. 1077; Rankin v. Schofield, 81 Ark. 440, 98 S. W. 674. That this is the law of this case was recognized by appellants in the instruction given at their request and numbered 3, which reads as follows: "No. 3. The court instructs the jury that the court means by the term 'insurable interest' to be such an interest arising from the relation of the party obtaining the insurance, either as a creditor of, or surety of, the assured, or from the ties of blood or marriage to him, as will justify a reasonable advantage or benefit from the continuance of his life, and that in the absence of any ties of blood or marriage between the beneficiary in the life insurance policy and the person whose life is insured, or of some contractual relation between them by reason of which damage may result to the beneficiary from the death of the party whose life is insured, that such insurance policies and notes given for the premiums thereon are void, except in the hands of an innocent purchaser for value before maturity without notice."

Other questions are presented in the briefs, but we find it unnecessary to discuss them. The case presents almost entirely a question of fact, and that question was submitted to the jury under instructions declaring the law as we have here stated it to be, and the judgment is therefore affirmed.

(Supreme Court of Arkansas. May 4, 1914.) 1. MASTER AND SERVANT (§ 286*) - INJURIES TO SERVANT ACTIONS QUESTIONS FOR JURY.

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Whether the master exercised ordinary care to provide a safe derrick, able to withstand any sudden strain incident to the work, for the use of a servant who was killed by its falling because of the breaking of a guy wire, held, under the evidence, for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. $$ 1001, 1006, 1008, 1010 1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

2. MASTER AND SERVANT (§ 97*)-INJURIES TO SERVANT-ACCIDENTAL INJURY.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.*1

The killing of a servant by the fall of a derrick because of the breaking of a guy wire when a sudden strain was put upon it by the dropping of the log being lifted was not an inevitable accident, if the master was negligent in furnishing a derrick unable to withstand sudden jerks or strains incident to the work. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig § 163; Dec. Dig. § 97.*] 3. MASTER AND SERVANT (§ 219*)-INJURIES TO SERVANT-ASSUMPTION OF RISK-KNOWLEDGE OF SERVANT.

4. MASTER AND SERVANT (§ 129*)-MACHINERY AND APPLIANCES-PROXIMATE CAUSE.

If negligence of the master in furnishing a derrick having a cap plate at the top of the mast, with sharp-edged holes which cut into the death of a servant from the falling of the the guy wires fastened thereto, contributed to derrick, it was liable, though a jerk caused by the falling of a log being lifted also concurred in producing the result.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]

[Ed. Note.-For other cases, see Master and BURDETTE COOPERAGE CO. v. BUNTING. Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. $ 270.*1 (No. 300.)

7. MASTER AND SERVANT (§ 264*)-INJURIES TO SERVANT-ACTIONS-ISSUES, PROOF AND VARIANCE.

In an action for the death of a servant from the falling of a derrick, alleged to have been caused by the old, rusty, rotten, and worn condition of the guy wires, evidence was admissible that part of the strands of the broken wire were not inserted in the cap plate, where there was evidence that some of the strands were already broken, and, the court instructed that it was only admissible as tending to show the conditions alleged.

5. APPEAL AND ERROR (1053*)-REVIEWHARMLESS ERROR-ADMISSION OF EVIDENCE.

Error, if any, in admitting evidence of deceased's disposition toward a child of his wife, who was suing for his death, was without prejto similar evidence that "all reference to the udice, where an objection subsequently made little girl should be eliminated entirely" was sustained, and the court instructed that plaintiff could recover for loss of contribution to her own support.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4178-4184: Dec. Dig. § 1053.*1

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[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]

Appeal from Circuit Court, Mississippi County; W. J. Driver, Judge.

Action by Melissa Bunting, administratrix of Fred Bunting, deceased, against the Burdette Cooperage Company, for negligently causing the injury and death of deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

The Burdette Cooperage Company, for the purpose of lifting, loading, and otherwise handling logs at its plant, used a derrick; two of the principal parts consisting of a

The danger of a derrick falling because of the guy wires being cut by the sharp edges of the plate to which they were fastened at the

mast pole and a boom pole. The mast pole was 42 feet long, and was intended to stand in a perpendicular position, and to be held in such position by guy wires, one end of which was fastened to trees, stumps, or what is known as "dead men," and the other end was attached to a wrought iron or steel cap or plate on the top end of the mast pole. The holes through which the guy wires were to pass near the rim of the cap were cut straight or square through, leaving sharp edges. The edges were not rounded out, nor were they lined with rings or shields to prevent the wearing away of the galvanized iron guy wire. The guy wire was softer than the plate or cap through which it passed. The naked wire should not have been allowed to touch the edges of the holes of the cap through which it passed, as the sharp edges of the iron would wear and cut away the strands of the guy wire.

The derrick, in its use, had become loose, so that the mast pole would swing back and forth some 8 or 10 inches, and as it swung it would jerk on the cable or guy wires on the other side. The boom pole was fastened to the mast pole near the lower end and stood at an angle of about 45 degrees and swung around as occasion required. The mast pole and the boom pole were equipped with pulleys, cables, guy wires, and implements of machinery necessary to constitute a working derrick.

Fred Bunting, on the 22d day of July, 1912, was in the employ of the Burdette Cooperage Company as a common laborer, and on the above day he was temporarily engaged as a hooker. There were two hookers, whose duty it was to adjust the hooks to the ends of the logs. When these hooks were fastened into the ends of the logs, a signal would be given, the engine would start, and the drum would wind up the cable to which the logs were attached, and in this way the logs would be slowly lifted. While lifting a log in this way, one of the guy wires broke, causing the derrick to fall, which resulted in the injury to Bunting, from which he died the following day. He was conscious and suffered great pain from the time of the injury until his death.

The derrick had been put up about a year before, and had fallen down by reason of a heavy pull made on it. It had been reconstructed about two weeks before the injury by the company's millwright.

The above are substantially the facts giving the evidence its strongest probative force in favor of appellee.

that the wires were old and rust-eaten, rotten, and so worn and in such a weakened condition that, while the log was being lifted, one of them gave way, causing the derrick to fall, whereby Bunting was struck and injured, and afterwards died from the result of such injuries.

The appellant denied the allegations of negligence set up in the complaint and pleaded affirmatively that the death of Bunting was the result of an accident, and also set up contributory negligence and assumed risk. The cause was submitted to the jury. The appellant asked the court to direct a verdict in his favor after the evidence was adduced, which the court refused, and to which ruling appellant duly excepted. No objection is urged to any other rulings of the court in the giving or refusing of instructions. A verdict was returned in favor of the appellee in the sum of $1,000 damages for pain and suffering and in the sum of $4,000 for the pecuniary loss to appellee by reason of the death of her husband. Judgment was entered for the sum of $5,000, and this appeal has been duly prosecuted. Other facts stated in the opinion.

W. J. Lamb, of Osceola, and H. T. Harrison and T. D. Wynne, both of Fordyce, for appellant. Gravette & Alexander, of Blytheville, and J. T. Coston, of Osceola, for appellee.

WOOD, J. (after stating the facts as above). [1] 1. The court did not err in refusing to direct the jury to return a verdict in favor of the appellant. It was a question for the jury, under the evidence, as to whether or not the appellant had exercised ordinary care to provide its servant Bunting with reasonably safe appliances with which to perform the work in which he was engaged at the time of his injury. The testimony of appellant's millwright, who constructed the derrick, was to the effect that he used the usual material in the construction of the same and constructed the same in the usual manner that such machinery was constructed. He stated that the holes through the cap to which the guy lines were fastened were round holes, drilled out for the purpose of passing the guy lines through; that he ran the guy lines through the holes, bent them over, parted the ends, and brought them back on the main line and made them fast; that they were all fastened in that way. This way of fastening them he considered safe. Sometimes they are fastened with clamps, sometimes with half-hitches. These different ways are all safe. He had put up several this way. The wires could be fastened in the manner indicated "so fast and close that they would break before they would let go."

The appellee, as administratrix, brought this suit to recover damages for the injury to and death of Fred Bunting, alleging that, by reason of the careless and improper man- But there was testimony on behalf of the ner in which the guy wire was fastened to appellee tending to show that the falling of the cap, it worked loosely therein, the hole the derrick was caused by the breaking of being much larger than the guy wire, and as one of the large cables; that soon after the

next morning anyway, before the derrick was moved off the skidway, the cable was examined to ascertain the condition of the ends of the wires where the same were broken. The cable was broken where the edges of the wrought iron holes in the cap cut into it. There had been some jerking back and forth. Some of the ends of the strands were bright, and some were not. Some of them had the appearance of having been broken before the accident. Some of the ends had turned dark. Half, anyway, of the ends of the strands were dark, indicating an old break.

There was testimony tending to show that all derricks will fall when their guy wires are worn and broken. A piece of the guy wire, showing the broken end, was exhibited and identified as the end of the guy wire where the same had broken at the time of the injury complained of.

There was testimony on behalf of the appellee tending to show that the mast pole was loose, playing back and forth a distance of 8 or 10 inches, and allowing the same to jerk, and that the holes through the plate on top of the mast pole were left without covering, exposing the strands of the guy wires to the edges of the wrought iron or steel plate, thereby causing the guy wires to be cut in two and worn off.

Notwithstanding the testimony of appellant's millwright that he constructed the derrick in the usual manner, and that he considered it safe, the above testimony on behalf of the appellee made it a question for the jury to say as to whether or not the appellant had exercised ordinary care to furnish a safe derrick.

above testimony. The slipping of the tongs or hooks from the end of the log, thereby causing the same to fall and producing a sudden jerk or strain upon the guy wires, the jury might have found was one of the incidents of work of that character, which appellant, in the exercise of reasonable care, should have anticipated and should have exercised ordinary care to have counteracted. It was a question for the jury as to whether or not, if such care had been exercised in the construction of the derrick, the same would have fallen, notwithstanding the slipping of the tongs and the sudden dropping of the end of the log. The jury might have found that the exercise of ordinary care upon the part of appellant to properly construct the derrick would have prevented the breaking of the guy wires and the falling of the mast pole, and the resultant injury to Bunting.

[21 2. Appellant contends that the falling of the derrick was an inevitable accident. Bunting, at the time of his death, was hooking tongs in the end of a log. He was assisted by a fellow employé at the other end of the log. These employés stood at the opposite ends of the log, and each hooked the tongs in the end next to him. They fastened their hooks in each end of the log, and a signal was given to the derrick operator to lift the log. He made two or three efforts to lift same, and raised the log between three and six feet from the ground. While the log was suspended in this position, the hooks of Tardy, Bunting's fellow employé, pulled out, causing his end to fall to the ground instantly, and the derrick fell at the same time the hooks pulled out. It is contended by the appellant that the jerk caused by this fall caused the derrick to give way by breaking the guy wire opposite the suspended hook at or near the top of the mast pole. But this does not show conclusively that the falling or the jerk was the result of an accident. It was a question for the jury as to whether or not appellant was negligent in failing to so construct the derrick that it would not fall when

[3] 3. The mast pole was 42 feet high, and the plate to which the guy wires were fasIf the holes tened was on top of the same. in this plate were defective, as the jury might have found, and if the guy wires, by reason of the sharp edges of these holes and the jerking of the mast pole, had been cut and worn so as to render them incapable of holding the mast pole under the strain to which it was subjected, these were not obvious defects, and therefore Bunting was not required to take notice of them. The jury might have found that they were caused by the negligence of the appellant. Bunting therefore did not assume the risk incident to such defects. They were not risks ordinarily incident to the employment in which he was engaged, but were caused by the negligence of the master, were unknown to the servant, Asher v. and he did not assume them. Byrnes, 101 Ark. 197, 141 S. W. 1176.

[4] 4. If the defective condition of the holes through the cap plate, and the weakened condition of the strands of the guy wires caused thereby, contributed to the injury, and this was the result of negligence on the part of the appellant, it would be liable, notwithstanding the slipping of the tongs from the end of the log may have also concurred Such being the case, in producing the result. the negligence of the company was but one of the co-operating causes of the injury, without which, as the jury might have found, same See 2 Labatt on would not have occurred. Master & Servant, 813; Railway Co. Triplett, 54 Ark. 299, 15 S. W. 831, 16 S. W. 266; Kansas City, Ft. Scott & Memphis Ry. Co. v. Becker, 67 Ark. 1-8, 53 S. W. 406, 46 L. R. A. 814, 77 Am. St. Rep. 78; Marcum v. Three States Lumber Co., 88 Ark. 28-37, 113 S. W. 357.

V.

[5] 5. Over the objection of appellant, appellee was permitted to testify that her husband, Bunting, was good to his family; that he was interested in the education and train

to raise the child right and give it a good this testimony was not relevant to the aleducation. On cross-examination it develop-legations of the complaint.

ed that the child was the daughter of appellee by her first husband. Further on in the trial another witness was asked whether or not Bunting took an interest in the education and training of the little girl, whereupon counsel for appellant remarked, "If the court please, I think it has come to a place where all reference to the little girl should be eliminated entirely;" and the record shows that the court "sustained" counsel in his remarks.

The court, in its instruction on the measure of damages, told the jury that, if they found for the appellee, they would assess her damages at such sum as they found "from the evidence would compensate her for the loss of contribution from him for her support through life." The rulings of the court in sustaining the remarks made by the counsel and the instructions given on the measure of damages were tantamount to removing from the jury the testimony concerning the disposition of Bunting toward appellee's child. If the admission of this testimony was erroneous (which we do not decide), the rulings of the court, as above indicated, were sufficient to remov^ all prejudice to appellant that might have otherwise been caused thereby. See Bunyan v. Loftus et al., 90 Iowa, 122, 57 N. W. 685-687.

[6] 6. A witness was asked the following question: "Do you know whether or not it was generally understood from that time on to when Mr. Bunting was killed, by the old employés there, as dangerous" (that is, that the derrick was dangerous)? The witness answered, "Yes, sir." Appellant then objected to the question and answer, and his objection was overruled. There was no prejudice to appellant in the ruling of the court. "Common knowledge of the servants themselves, who have to handle the instrumentality in question, that it is an improper one for the purposes for which it is furnished" is admissible, says Mr. Labatt, as tending to establish notice of the employer's part of the defective character of the machinery. "It is not competent to prove the ultimate fact that the instrumentality was actually an unsuitable one." 3 Labatt on Master & Servant, 1030. Such testimony is competent for the purpose of showing that appellant knew, or might have known, by the exercise of reasonable diligence, that the instrumentality was defective and unsafe. See Railroad v. Shannon, 43 Ill. 338; Railroad v. Fredericks, 71 [ll. 294. See St. L., I. M. & S. Ry. Co. v. Morgart's Adm'x, 45 Ark. 318-327.

The court instructed the jury that the evidence could only be considered by them in so far as it tended to establish the allegations of the complaint that the guy wires were old, rusty, and rotten and caused to be worn loose. There was evidence tending to show that some of the strands of the guy wire were dark and rusty, indicating an old break. In view of the instructions of the court, there was no error in admitting the evidence, for it was competent as tending to prove that the guy wire was rusty, old, and worn, and therefore in a weak and defective condition.

Finding no reversible error, the judgment is affirmed.

BONNER v. CROSS COUNTY RICE CO. (No. 301.) (Supreme Court of Arkansas. May 4, 1914.) JOINT ADVENTURES (8 7*)-CONTRACT-CONSTRUCTION-TRUSTS.

Where a contract for the purchase of land for speculative purposes provided that the title should be taken in the name of J., who advanced the money to pay for the land, but that the lands should be disposed of under the joint direction of all the parties, including plaintiff, who was only required to contribute his time, labor, skill, and judgment, plaintiff acquired an interest in the lands, as distinguished from the though J. held the legal title, he could not conprofits after the lands were sold, so that, vey the land without plaintiff's consent; and, the trust contract being of record, a purchaser of the lands from a corporation formed by J. to handle the lands and deprive plaintiff of his interest took title subject to the trust, and a court of equity would treat the land as though the title remained in J.

[Ed. Note. For other cases, see Joint Ad

ventures, Cent. Dig. § 8; Dec. Dig. § 7.*]

Appeal from Cross Chancery Court; Edward D. Robertson, Chancellor.

Suit by the Cross County Rice Company against A. W. Bonner and another. Judgment for plaintiff, and defendant Bonner appeals. Reversed and remanded.

The Cross County Rice Company instituted this action in the chancery court under sections 649-660, inclusive, of Kirby's Digest, to confirm its title to certain lands in Cross county. A. W. Bonner and the assignee of C. L. Sharp were made parties defendant. The complaint alleges that the plaintiff claims title to the lands described in the complaint by virtue of a deed from F. D. Rolfe and wife. The deed is made an exhibit to the complaint, and the consideration therein recited is the sum of $1. The complaint further alleges that plaintiff is ad[7] 7. The appellant complains because the vised that the defendant, A. W. Bonner, and court overruled its motion to strike out the the assignee of C. L. Sharp set up some claim testimony of certain witnesses to the effect or interest in said land, or the profits on a that part of the wires composing the main sale of the same, under a contract made beguy wire, which was broken, were not in- tween S. D. Johnson, C. L. Sharp, and A. W. serted through the hole in the cap on the Bonner. The contract is made an exhibit to top of the mast pole. Appellant urges that the complaint, and is as follows: "This

agreement, made and entered into by and between S. D. Johnson and A. W. Bonner, both of Lee county, Arkansas, and C. L. Sharp, of Cross county, witnesseth: That the said parties have all been engaged in securing the purchase of certain tracts of land in Cross county, Ark., the same being paid for and owned by the said S. D. Johnson and the deeds made to him, as shown by the records of Cross county, Ark., but with the understanding that said lands are to be handled and disposed of in any way agreed upon between the parties hereto, and the net profits are to be divided equally between the said parties. The profits shall be construed as being the difference between the purchase price and sale price of said lands, after deducting interest on the purchase price at the rate of 6 per cent. per annum, from date of purchase to the date of sale, together with any taxes that may have been paid thereon. It is understood that this agreement applies to all lands now deeded to said S. D. Johnson in Cross county, Ark., and any other after-acquired lands in which the other two parties hereto were interested in securing the purchase, and the same was accepted by the said S. D. Johnson as satisfactory to him. It is also understood that each is to bear one-third of the expense incident to the purchase and sale of any lands under this agreement. In testimony whereof, all the parties hereto have signed their names on this the 16th day of March, 1909. S. D. Johnson. A. W. Bonner. C. L. Sharp."

but denies that the lands purchased under said contract were ever advertised and sold at public auction in the city of Wynne to the highest bidder. He denies that F. D. Rolfe became the purchaser of said lands at public sale as the highest bidder thereof. He denies that he was ever notified of the time and terms of said alleged sale. In his cross-complaint he alleges that the lands set out in the plaintiff's complaint were purchased under the contract above referred to between Johnson, Sharp, and himself. He alleges that said lands were purchased for the average price of not more than $8 per acre; that said lands have enhanced in value, until the same are now worth the sum of $30 per acre; that after said lands had enhanced in value the defendant, together with Johnson and Sharp, were at different times offered sums for said land that would have netted them a large profit, which said Johnson and Sharp refused to accept; that after said lands had enhanced in value, as aforesaid, the said Johnson and other persons agreed to form a corporation to take over said lands at a sum equal to the actual cost price, together with the interest; that pursuant to said fraudulent design the said Johnson, without notice in any manner to this defendant and cross-complainant, on the 11th day of July, 1912, executed to said F. D. Rolfe a quitclaim deed to the lands in controversy for a nominal consideration of $1; that the said Johnson, Rolfe, and other members, who are stockholders of plaintiff corporation, were fully acquainted with, and had full knowledge of, the contract between this defendant and cross-complainant and the said Johnson; that nothing of value ever passed between them and said Johnson and Rolfe for said lands. The prayer of the crosscomplaint is that the lands be sold under an order of the court for a division of the proceeds under the terms of said contract, and that the defendant have judgment against S. D. Johnson for one-third of the value of said lands after deducting therefrom the cost price, together with taxes and interest, and that said judgment be declared a lien upon the land.

The chancellor sustained a demurrer to

The instrument was duly acknowledged and filed for record. The complaint further alleges that all of said lands were, after due advertisement and notice, sold at public auction at the courthouse in the city of Wynne to the highest bidder for cash, and subject to a mortgage due to the Hartford Life Insurance Company, and that at said sale F. D. Rolfe became the purchaser, he being the highest bidder therefor; that as such purchaser he received a deed from the said Johnson and assumed to pay the mortgage to the Hartford Life Insurance Company; that he afterwards conveyed said lands to the plaintiff, which assumed to pay said mortgage debt; that said C. L. Sharp and his assignee and A. W. Bonner were duly apprised and notified of the time, day, and terms of said sale; and that after the same was made each of said parties was tendered the amount due to him under the terms of the contract above referred to. The prayer of the complaint is that said Bonner and Sharp and his assignee be summoned as defendants in the cause; that the contract between Johnson, Sharp, and Bonner, above referred to and set out, be canceled as a cloud upon the title of the plaintiff; and that the title of the plaintiff to said lands be quieted and confirmed. Bonner filed an answer and cross-complaint. In his answer he admits the execution of the contract exhibited to the plaintiff's complaint,

the answer and cross-complaint of Bonner, and the same were dismissed for want of equity. The court then rendered a decree canceling the written contract between Johnson, Bonner, and Sharp so far as it affected the plaintiff's title to the lands in controversy, and decreed that it be removed as a cloud upon the title of the plaintiff, and that the title to all the lands involved in this action be confirmed and quieted in the plaintiff.

S. Brundidge, of Searcy, for appellant. Killough & Lines, of Wynne, for appellee.

HART, J. (after stating the facts as above). Counsel for plaintiff seek to uphold the decree of the chancellor upon the authority of McCulloch v. Chatfield, 67 Fed. 877, 15 C. C.

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