| Ark. | Jan 17, 1921
At the trial from which this appeal comes the appellant was found guilty under an indictment charging it with permitting a well to remain uncovered on an uninclosed lot owned by it in the city of Benton. The indictment also alleged that two mules, of the value of $500, the property of S. McLehaney, had fallen into the well and been killed. The verdict of the jury fixed the value of the mules at $500-, and judgment for twice that amount was rendered against appellant.
The appellant company had a loan secured by mortgage on the lot in question and acquired title to the lot under a foreclosure proceeding in-1915. Appellant immediately thereafter rented the lot and the house standing thereon to one Witham, who thereafter remained continuously in possession until September 5, 1919, on which date the mules fell into the well.
The well was dug prior to the foreclosure proceeding, and according to appellant was securely covered at the time the property was delivered to Witham.
McLehaney. testified that he had been employed to plow the garden, and that he did not know the well was on the premises, that he saw a pile of rubbish on some planks, but Bermuda grass and weeds had grown over the well; that as he drove by the well one mule set her hind foot close to the well and the dirt caved in and that caused the mule to slip and she fell into the well and pulled the other mule in on top of her. The well was within a few feet of the house, and that portion of the premises was uninclosed.
Numerous errors are assigned, and the Attorney General has confessed error on several of the assignments ; and, as there is error, the cause must be, reversed. We proceed, therefore, to declare the law of the case to the end that it may be properly tried on its remand.
The first error assigned is that it was improper to assess and award damages in the trial of the criminal case. This was error, because the statute does not authorize that procedure. There are certain proceedings in which a fine may be imposed by the jury for a violation of a statute by' killing or injuring live stock or damaging property and an assessment of such damages made by the same jury which tries the criminal branch of the case; but there is in those cases a statutory authorization for the proceeding. But here there is an absence of such authority in the statute under which this proceeding was had.
The owner of the mules was not a party to this proceeding, and unquestionably would not have been concluded by the judgment, had appellant been acquitted. The case of Johns v. Patterson, 138 Ark. 420" date_filed="1919-04-21" court="Ark." case_name="Johns v. Patterson">138 Ark. 420, was a suit under a statute which made it unlawful to entice away a laborer, and provided for both a fine and for damages. The contention was there made that the suit for damages could not be maintained prior to a conviction for the misdemeanor. We held against that contention, and in doing so said the injured person was not a party to the prosecution and could not control it; that the charge might be dismissed without his consent, and he could not prosecute an appeal from that judgment; and that the doctrine of reasonable doubt prevails on the trial of a criminal case, whereas in a civil action for a tort a preponderance of the evidence in favor of the plaintiff would entitle him to a verdict. It was not proper, therefore, to assess damages upon the trial of the misdemeanor.
The proceeding was had under the authority of section 7905 of Kirby’s Digest, as amended by act 119 of the Acts of 1905 (page 312), which reads as follows:
“It shall be unlawful for any corporation, company, individual, person, or association of persons, to leave any shaft, well or other opening uncovered on any uninclosed land. Every corporation, company, individual, person, or association of persons, who shall dig any such shaft, well or other opening, whether for the purpose of mining or other purpose, shall be required to securely inclose the same or cover and keep covered with strong and sufficient coverings.”
The statute, as found in Kirby’s Digest, made it unlawful “to leave any shaft or opening uncovered on any uninclosed land.” As amended, it was made unlawful ‘ ‘ to leave any shaft, well or other opening uncovered on any uninclosed land.” The addition of the word “well” after the word “shaft” and of the adjective “other” before the noun ‘ ‘ opening, ’ ’ in the first sentence, and the addition of the words “well or other opening” after the word “shaft,” in the second sentence, and the substitution of the words “other purpose” for the word “otherwise,” would appear to refute appellant’s insistence that the penalty of the act is only directed against excavations for the purpose of mining or purposes similar to mining.
Appellant says that the rule ejusdem generis is applicable here in the construction of the statute, and that only excavations made in mining, or for similar purposes, are unlawful. The original statute made it unlawful to dig any such shaft, “whether for the purpose of mining or otherwise.” The word “whether” is defined in Webster’s New International Dictionary as “A particle used' to indicate that what follows is an alternative. * * *”
This court has often recognized and applied the ancient maxim ejusclem generis in the construction of statutes. But, like all rules of construction, it is invoked to aid, and not to control, the construction. In the case of Crabtree v. State, 123 Ark. 68" date_filed="1916-03-20" court="Ark." case_name="Crabtree v. State">123 Ark. 68, in speaking of the maxim, we said:
“ ‘It has never been supposed,’ says the Supreme Court of Illinois, ‘that the rule required the rejection of the general terms entirely, but only that they should be restricted to cases of the same kind as those expressly enumerated. On the contrary, it must yield to another equally salutary rule of construction, viz., that every part of a statute should, if possible, be upheld and given its appropriate force.’ Misch v. Russell, 136 Ill. 22" date_filed="1891-01-22" court="Ill." case_name="Misch v. Russell">136 Ill. 22, 25.”
So, here, when section 7909 of Kirby’s Digest is read in connection with the amendatory act of 1905, it appears clear that the legislative purpose was to make it unlawful to leave uncovered, on uninclosed lands, any shaft, well or other opening, whether they had been dug for mining purposes or for purposes other than mining.
We conclude, therefore, that the court below was correct in instructing the jury that leaving an uncovered well was unlawful, although the well had not been dug for mining or a similar purpose.
It is next insisted that the act was never intended to apply to a lot in a town or city occupied as a residence. But we find nothing in the act to support that contention. Certainly, the danger which the act seeks to avert is as great in a city or town as elsewhere.
It is next insisted that appellant can not be guilty because it affirmatively appears that it did not dig the well, nor have it dug. The statute does not require this showing. Upon the contrary, it is made unlawful to leave a well uncovered on any uninclosed land; and to leave uncovered means to permit the well to remain uncovered; and, if this is done, it is not material to inquire who dug the well. The gist of the offense is leaving the well, shaft, or other opening uncovered or unprotected, and that person violates the law who is guilty of that omission.
Appellant insists that under no view can it be guilty because the undisputed testimony shows that the well was securely covered when it turned the premises over to its tenant. This point was not fully developed at the trial, however, as the court had the view — as reflected in the instructions — that the owner was responsible for the safety of the premises, under all circumstances.
In the case of Clay v. El Dorado Hotel Co., 121 Ark. 253" date_filed="1915-12-06" court="Ark." case_name="Clay v. El Dorado Hotel Co.">121 Ark. 253, we had occasion to consider the liability of the owner of the land to a pedestrian who had fallen into a coal-hole at a time when the premises were in the possession of a tenant to whom they had been leased. The landowner there had covenanted to make the necessary repairs. In that case we approved an instruction which told the jury that, if there was no structural defect in the covering of the coal-hole, the duty of keeping it covered would devolve on the tenant.
So here the duty of keeping the well properly covered rested upon the tenant, provided the well was properly covered when the tenant took possession. The offense is not committed by digging a well, but is committed by leaving a well uncovered. It vfas the landowner’s duty to have had the well properly covered when the premises were turned over to the tenant; and if he was remiss in this, he is subject to the penalty of the statute. If the landowner had complied with his duty in this respect, then he was not responsible for the tenant’s failure to keep the property in proper repair. For such failure the tenant is himself liable. 16 R. C. L., page 1063, section 584, of the article on Landlord and Tenant, and authorities there cited.
Other questions are raised in the briefs which can only properly be considered in a suit by the owner of the mules for his damages.
For the errors indicated the judgment is reversed and the cause remanded.