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. 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 remove 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. BONNER v. CROSS COUNTY RICE CO. (No. 301.) (Supreme Court of Arkansas. May 4, 1914.) JOINT ADVENTURES (§ 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 direction of all the parties, including plaintiff, the lands should be disposed of under the joint who was only required to contribute his time, labor, skill, and judgment, plaintiff acquired an interest in the lands, as distinguished from the profits after the lands were sold, though J. held the legal title, he could not conso 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. ventures, Cent. Dig. § 8; Dec. Dig. § 7.*] [Ed. Note.-For other cases, see Joint Ad 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 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 en 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 dif-hanced in value, until the same are now worth ference 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." 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 The instrument was duly acknowledged had full knowledge of, the contract between and filed for record. The complaint further this defendant and cross-complainant and the alleges that all of said lands were, after due said Johnson; that nothing of value ever advertisement and notice, sold at public auc- passed between them and said Johnson and tion at the courthouse in the city of Wynne Rolfe for said lands. The prayer of the crossto the highest bidder for cash, and subject complaint is that the lands be sold under to a mortgage due to the Hartford Life Insur- an order of the court for a division of the ance Company, and that at said sale F. D. proceeds under the terms of said contract, Rolfe became the purchaser, he being the and that the defendant have judgment highest bidder therefor; that as such pur- against S. D. Johnson for one-third of the chaser he received a deed from the said John-value of said lands after deducting therefrom son 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; 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 answer and cross-complaint of Bonner, and the same were dismissed for want of canceling the written contract between Johnequity. The court then rendered a decree son, Bonner, and Sharp so far as it affected and decreed that it be removed as a cloud upthe plaintiff's title to the lands in controversy, on the title of the plaintiff, and that the title to all the lands involved in this action be confirmed and quieted in the plaintiff. 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. HART, J. (after stating the facts as above). Bonner filed an answer and cross-complaint. Counsel for plaintiff seek to uphold the deIn his answer he admits the execution of the cree of the chancellor upon the authority of contract exhibited to the plaintiff's complaint, | McCulloch v. Chatfield, 67 Fed. 877, 15 C. C. S. Brundidge, of Searcy, for appellant. Killough & Lines, of Wynne, for appellee. that the lands were to be disposed of under the joint direction of all the parties to the contract. This gave Bonner something more than a mere interest in the profits after the lands were sold. It gave him an interest in the lands themselves. Johnson held the legal title, but he could not convey the lands without the consent of Bonner. In the case of Seymour v. Freer, 8 Wall. 202, 19 L. Ed. 306, the court said: "A trust is where there are rights, titles, and interests in property distinct from the legal ownership. In such cases the legal title, in the eye of the law, carries with it to the holder absolute domin interests in the same property belonging to another. These rights, to the extent to which they exist, are a charge upon the property, and constitute an equity which a court of equity will protect and enforce whenever its aid for that purpose is properly invoked. Interests in real estate, purely contingent, may be made the subject of contract and equitable cognizance, as between the proper parties." A. 48. In that case, McCulloch, Chatfield, | whatever price he saw fit, so long as he acted Allen, and others entered into a written con- in good faith. Here the contract provided tract for the purchase and sale of certain lands. Under the terms of the contract the title to the land to be purchased was placed in Chatfield, and he was to have the full and absolute control of the land and of the sale thereof, being only required to account for the proceeds of sale. After the land was sold and the expenses paid, the proceeds of sale were to be divided between the respective parties in proportion to the amounts they had paid in. The court held that the agreement contemplated that the trustee appointed in it should hold the title to such land as might be acquired under the agreement, dispose of the same to the best advan-ion; but behind it lie beneficial rights and tage possible, and convey the same when sold by his individual deed. The only limitation placed upon his powers was that he should not sell any of the land for less than $1 per acre without the consent of all parties in interest. Under these circumstances the court said that the trust created by the agreement plainly belonged to that class of trusts where the beneficiaries acquired no estate in lands held by the trustee until after they are sold, when their rights attach to the proceeds of sale; that under the terms of the agreement the title to the land acquired was taken in the name of the trustee for the express purpose of enabling him to sell it without let or hindrance and to divide the proceeds among those who might become interested in the speculation. Therefore the court held that McCulloch was not entitled to a decree adjudging that he was the owner of an undivided interest in the property, as a decree of that nature would very likely interfere with the dominion over the property which the trustee was entitled to exercise so long as he acted in good faith and was guilty of no dereliction of duty. It may be noted that there was no allegation that the trustee had acted fraudulently in that case. It was not even charged or proved that he had been either negligent or inefficient in the discharge of his duties. We think the principles there announced control the present case. The object of the trust here was the sale of the property, and the parties to the agreement were to agree upon the manner of its disposition. This gave the parties to the agreement a joint in terest in the property. Johnson held the legal title, but the rights of Bonner are as val id in equity as those of Johnson are at law. Bonner, in his cross-complaint, alleges that Johnson sold the property without his consent at a price very much less than they had been previously offered for the lands, and for a less price than the lands were worth when sold; that the plaintiff corporation was formed by persons for the express purpose of buying the lands at the same price for which they were purchased under the agreement under consideration; that Johnson, Rolfe, and the other incorporators had full knowledge of his rights and interest in the lands; and that said lands were purchased by the corporation for the express purpose of defrauding him and of depriving him of his interest in the land. Under the allegations of his cross-complaint, the grantee took the title subject to the trust upon which Johnson held the property, and a court of equity will deal with it as if the title to the land still remained in Johnson. It is true in the case at bar the defendant, Bonner, did not expend any money in the purchase of the land, but only contributed his time, labor, skill, and judgment in the purchase thereof. Under the terms of the agreement, the titles were all to be taken in the name of Johnson, who advanced the money to pay for the land; but hereafter the facts in the case at bar are essentially different from those in the case of McCulloch v. Therefore we think the court erred in susChatfield, supra. In that case the duties taining the demurer to the defendant's anand responsibilities of McCulloch ended when swer and cross-complaint, and for that erthe title was taken in the name of Chatfield, ror the decree will be reversed, and the cause and Chatfield had the absolute power to dis-remanded for further proceedings not inconpose of the lands in any manner and for sistent with this opinion. RICHARDSON v. COHEN. (No. 304.) (Supreme Court of Arkansas. May 4, 1914.) APPEAL AND ERROR (§ 999*)-VERDICT-CON CLUSIVENESS. So far as the weight of the evidence is concerned, the verdict of a jury is conclusive on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3912-3921, 3923, 3924; Dec. Dig. § 999.*] Appeal from Circuit Court, Cleburne County; Geo. W. Reed, Judge. Action by Ed Cohen against F. C. Richardson. From a judgment for plaintiff, defendant appeals. Affirmed. M. E. Vinson, of Heber Springs, for appellant. Mitchell & Thompson, of Heber Springs, and Gus Seawel, of Yellville, for appellee. violently to lurch and jerk, and that the negligence in failing to provide handholds, ladders, or other appliances to enable the brakeman to pass safely from one car to another, concurring with the engineer's negligence, caused the injury from which the brakeman died, stated a cause of action. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. 8 258.*] 3. APPEAL AND ERROR (§ 1042*)-PLEADING (§ 22*)-COMPLAINT-REDUNDANCY. That portions of a complaint were redundant, and that it contained unnecessary details, did not render it defective, and there was no prejudicial error in refusing to strike out unnecessary allegations. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. 1042;* Pleading, Cent. Dig. § 45; Dec. Dig. 22.*] 4. PLEADING (§ 18*)-COMPLAINT CERTAINTY AND DEFINITENESS. grounds upon which plaintiff seeks to hold In alleging a cause of action, the particudefendant liable should be stated with as much definiteness and certainty as possible; but more specific details are not required and are matters to be developed by the testimony. SMITH, J. The facts in this case are stat-lar ed in the opinion delivered on the former appeal, and the evidence in the present record is substantially the same as it was there. In fact, some of the most important evidence was taken from the former record. The case is not reported in the official reports of this court, but the opinion may be found in 150 S. W. 574.1 The judgment on the former appeal was reversed, because the instruction given by the court, submitting the case to the jury, did not fully state the appellant's contention; but that error was not repeated at the trial from which this appeal was prosecuted. It is now earnestly insisted that the court below should have directed a verdict in appellant's favor; but we think the evidence presented a question of fact which was properly submitted to the jury, and the verdict of the jury is conclusive on us, so far as the weight of the evidence is concerned. The judgment will therefore be affirmed. KANSAS CITY SOUTHERN RY. CO. v. LESLIE. (No. 244.) (Supreme Court of Arkansas. April 6, 1914.) 1. REMOVAL OF CAUSES (§ 3*)-CAUSES REMOVABLE-ACTION UNDER EMPLOYERS' LIABILITY ACT. In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), the court properly denied a petition for removal to the federal court. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*] 2. MASTER AND SERVANT (§ 258*)-ACTIONS FOR INJURIES-COMPLAINT. In an action for the death of a railway brakeman, a complaint alleging that defendant was negligent in not providing ladders and grabirons on the ends of the cars and in making up the train with a tank car next to a higher car, and in that its engineer handled the engine, so as to cause the train unnecessarily and Reported in full in the Southwestern Reporter; reported as a memorandum decision without opin ion in 105 Ark. 697. [Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 39, 64; Dec. Dig. § 18.*] 5. APPEAL AND ERROR (§ 1043*)-HARMLESS ERROR-DENYING CONTINUANCE. In an action for the death of a railway brakeman, in which the amended complaint, filed within 10 days before the beginning of the term of court, alleged that there were no grabirons or handholds on the end of a tank car immediately in front of a refrigerator car or any other appliances thereon to enable a brakehold thereto and steady himself, it was not man in passing from one car to the other to prejudicial error to deny a continuance to enable defendant to investigate the history of the tank and refrigerator cars and ascertain whether they were in service before July, 1911, where it was shown at the trial that defendant had made investigation and was familiar with the history of the cars, and that they were in service prior to July 1, 1911, and had not been sent to the shop for general repairs since that date, as defendant had the benefit of the testimony which by the continuance it desired to procure. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4115-4121; Dec. Dig. 8 1043.*] 6. CONTINUANCE (§ 14*)-GROUNDS-AMEND MENT OF PLEADINGS. Where, in an action for the death of a railway brakeman, the original complaint alleged that the air on the train failed to work properly, and the train could not therefore be handled or controlled properly, and that because of this defective condition the train began jerking and swaying violently, and so continued until plaintiff was injured, and the amended complaint, filed within 10 days before the beginning of the term of court, alleged that the enbecome out of order or in carelessly manipugineer was negligent in permitting his air to violently and unusually, which jerking conlating it, so that the train was caused to jerk tributed to the injury, causing the death, a continuance to enable defendant to look into the air on the various cars on the train was properly denied, as the amended complaint merely stated in the original complaint, and, moreover, stated in a different way the cause of action the allegations as to the specific causes of the violent and unusual jerking were surplusage, and allegations that the engineer was negli gent in causing such jerking would give defend- | 12. APPEAL AND ERROR (§ 1056*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE. ant sufficient notice to require it to make all investigation which it deemed necessary. [Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. § 14.*] 7. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. In an action for the death of a railway 8. APPEAL AND ERROR (§ 237*)-RESERVATION STRIKE. то In an action for the death of a railroad brakeman, where, after evidence was introduced relative to trouble with the air appliances of the train, it was shown that the cars in which the defective condition existed were set out of the train before the injury, defendant should have moved to strike the testimony as to the trouble with the air appliances, and could not rest on the objection made to the testimony when it was offered, especially where the court charged that plaintiff could not recover if the death occurred from any negligence other than that alleged, and the negligence was alleged to have occurred after such cars were claimed to have been set out. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 13022; Dec. Dig. 8 237.*] 9. MASTER AND SERVANT (§ 278*)-ACTIONSRELEVANCY-SIMILAR MATTERS. In an action for the death of a railway brakeman claimed to have been due to the absence of ladders and handholds on the end of a box car, evidence as to the proportion of such cars in the country equipped with ladders and handholds on the end was properly admitted. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*] 10. EVIDENCE (§ 483*)-OPINION EVIDENCESUBJECTS OF EXPERT TESTIMONY. In an action for the death of a railway brakeman, witnesses engaged as brakemen or switchmen for 10 to 20 years and familiar with the method in which cars were equipped to enable them to perform their duties were properly permitted to testify that in their opinion it was much safer for brakemen to pass from the top of a high car to the platform of a low car if the high car was equipped with ladders and handholds on the end instead of on the side near the end. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2256-2266; Dec. Dig. § 483.*] 11. MASTER AND SERVANT (§ 111*)-LIABILFOR INJURIES-UNSAFE PLACE OR AP ITY PLIANCES. It was the duty of a railroad company to exercise ordinary care to equip its cars with such ladders, grabirons, and handholds as would furnish its employés with a reasonably safe place in which and reasonably safe appliances with which to work, irrespective of statute. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.*] In an action for the death of a railway brakeman claimed to have been due to the absence of handholds on the end of a car, the exclusion of evidence that, under the rules of the Interstate Commerce Commission, defendant was not required to put handholds on the ends of cars, unless sent to the shop for general re pairs, until July 1, 1916, was not prejudicial error, as the testimony would only show that in the opinion of the commission it was necessary for cars to be equipped with handholds or ladders, and it could not by postponing the time for so equipping them relieve defendant of its duty to exercise ordinary care to furnish its employés safe appliances and a safe place in which to work. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*] 13. WITNESSES (§ 268*)-CROSS-EXAMINATION -SCOPE AND EXTENT. In an action for the death of a railway brakeman claimed to have been due to a violent lurching and jerking of the train, plaintiff was properly permitted to show on the crossexamination of the engineer in charge of the train, who testified that there was no lurching or jerking, that, if there was, it could only have been caused by the engineer letting off too much steam; the engineer having had 17 years' experience and no objection on the ground that the evidence was not responsive to the examination in chief having been made. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.*] 14. MASTER AND SERVANT (§ 286*)-ACTIONS FOR INJURIES-QUESTIONS FOR JURY. In an action for the death of a railway brakeman claimed to have been thrown from a train while attempting to go from the top of a box car to the platform of a tank car, somewhat lower, due to the absence of handholds on the box car and a railing on the tank car and to the jerking of the train, evidence held to make questions for the jury as to the company's negligence, and its causal connection with the injury, though there were no eyewitnesses of the accident. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] 15. DEATH (§ 11*)-LIABILITY-STATUTORY PROVISIONS. Act Cong. April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), providing that every carrier by railroad engaged in interstate commerce shall be liable for damages to any person suffering injury, while employed by it or in case of his death, to his or her personal representative for the benefit of the surviving widow and children for injury or death resulting from negligence, and section 9. as added by Act April 5, 1910, c. 143, § 2, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325), providing that the right of action thereby given to a person suffering injury shall survive to his personal representative for the benefit of the surviving widow and children, but that in such case there shall be only one recovery for the same injury, create a right of action for the benefit of the widow and children wholly independent of the right of action_given to the injured person for the pain and suffering endured prior to his death. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 10, 15: Dec. Dig. § 11.*] |