text:
    Lemuel E. CLAYTON v. STATE of Arkansas
    5-5438
    447 S. W. 2d 319
    Opinion delivered November 17, 1969
    [Rehearing denied December 22, 1969.]

      Nick Wilson and Hugh Brown, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   J. Fred Jones, Justice.

Lemuel E. Clayton was tried twice in the Randolph County Circuit Court on the charge of possessing an illicit whisky still and worm. On the first trial the jury was unable to agree on a verdict and on the second trial Clayton was found guilty and sentenced to one year in the Arkansas State Penitentiary. On appeal to this court Clayton relies on the following points for reversal:

‘ ‘ The verdict is against the evidence of the case and the court erred (1) by not directing a verdict for appellant on appellant’s motion, and (2) by refusing to grant appellant’s motion for a new trial.
The court’s instructions, admonitions and statements to the jury subsequent to the submission of the case to the jury for deliberation induced a verdict which was not a fair expression of opinion of the jurors.”

James Thomas and Tracy Cowan were Negro men who lived in Memphis, Tennessee. They were arrested in September, 1966, while operating a whisky still near Janes Creek on a vacant farm in northern Randolph County, Arkansas. They both implicated Clayton in the ownership of the still. Clayton had previously lived just over the state line in Mississippi where he had operated an oil products business. Clayton owned a farm in Randolph County near where Thomas and Cowan were arrested. Thomas and Cowan were convicted of manufacturing untaxed whisky and they testified as witnesses for the state at Mr. Clayton’s trial.

Thomas testified that Clayton had lived over the state line in Mississippi about two and one-half miles from where Thomas lived on the outskirts of Memphis. He testified that he had purchased oil and grease for tractors from Clayton and had known him for some time. Thomas testified that he had been sentenced to two years in federal prison for making whisky and was released in 1965; that in the spring or summer of 1966 Mr. Clayton proposed to Thomas that they go into the whisky making business and that he agreed. He testified that Clayton proposed to furnish the still and all materials and equipment and Thomas agreed to build the still, set it up and operate it for $25 for each “run.” He says that Clayton drew him a map of how to reach Clayton’s home in Randolph County, Arkansas, and that by prior arrangement he drove his .automobile to Clayton’s home in Randolph County. He says that Clayton drove his pick-up truck from his home, eight or nine miles, to his farm in Randolph County, and that he followed Clayton in his automobile. He says that he .and Clayton and Eugene Potts cleaned off a place to set a still on a creek near the barn and vacant house, or cabin, on Clayton’s farm, and that he, while working in Clayton’s barn, with tools furnished by Clayton, built a still, a worm or condenser and two vats out of sheet tin and copper furnished by Clayton; that a few days later he and Clayton set up the still on the spot they had cleaned off for that purpose and that they filled the vats with mash. Thomas says that he then returned to Memphis and after a few days, when the mash in the vats had fermented, he returned to the still on Clayton’s farm and made whisky. He says that he made several “runs” on Clayton’s place and made several gallons of whisky for Clayton. He says that they ran out of water at the Clayton farm location and that Mr. Clayton decided to move the still to the Janes Creek location. He says that he brought Tracy Cowan from Memphis with him and he and Tracy and Mr. Clayton moved the still and set it up at the Janes Creek location. He says that Mr. Clayton hauled the still and equipment in his truck to the new location, previously selected by Clayton, and that he and Tracy followed in his automobile. He testified that they re-established the still at the new location and he made several gallons of whisky at the new location before he and Tracy were arrested. He testified that Mr. Clayton purchased and furnished all the materials, including charcoal and sugar, and delivered the materials to the still site in his truck. He testified that he and Mr. Clayton called each other several times by long distance phone, and that he was with Mr. Clayton on one occasion when Mr. Clayton purchased sugar and charcoal at Shoult Grocery in Memphis and paid Shoult with a check for $58.

When Thomas was arrested at the Janes Creek location, he told the police officers about the original setup on Clayton’s farm and showed them the original location of the still. Cowan corroborated Thomas’ testimony as to Clayton’s participation in moving the still and both Thomas and Cowan described in detail the house, barn and creek layout on the Clayton farm and where the key to a lock on a gate entering the place was kept under a rock at the base of a tree near the gate. There is no question that the testimony of Thomas and Cowan is more than sufficient to sustain the conviction, but neither is there any question that Thomas and Cow-an were accomplices and the conviction cannot be sustained on their testimony unless corroborated. Ark. Stat. Ann. § 43-2116 (Repl. 1964). So the question on this appeal, as it relates to appellant’s first point, is whether there is sufficient other evidence to corroborate the testimony of Thomas and Cowan. We are of the opinion that there is.

Eugene Potts testified that he was out of work in Memphis and that Thomas asked him about doing some work in Arkansas. He says that he went with Thomas to a shopping center in Memphis where they met Mr. Clayton, and that he agreed to work for Mr. Clayton in Arkansas. He testified that the nature of the work he was to do was not explained to him, but that he rode with Mr. Clayton in Clayton’s pick-up truck from Memphis to Clayton’s farm in Randolph County. He says that before they left Memphis they went by a place where Clayton purchased some “white” and “brown” tin which they loaded onto the truck and then unloaded into a shed behind Clayton’s house on his farm in Arkansas. He says he had never been in Arkansas, and that in entering Clayton’s farm they went through two gates and that the first gate was locked. He says that at Clayton’s direction he took a key from under a rock near the gate, unlocked the gate and he and Mr. Clayton drove to a cabin near a barn on the farm. He says that he and Mr. Clayton did some work that afternoon in cleaning off a place near a “branch” under the hill near Clayton’s house. He says that he spent the night in the three room house on Clayton’s farm, and that the next morning Mr. Thomas arrived in his own automobile and Mr. Clayton arrived in his pick-up truck; that the three of them finished cleaning off the place under the hill near the branch. He says he returned to Memphis with Thomas that afternoon and that the following day, at the shopping center in Memphis, Mr. Clayton paid him $20 by check which he cashed at the shopping center.

Edna Thomas, the wife of James Thomas, testified that she knew that James was working for Mr. Clayton in Arkansas, but did not know that he was making whisky. She testified that Thomas had left Clayton’s Arkansas telephone number with her through which she could reach Thomas in case of emergency. She testified that when Thomas failed to return home on the night of his arrest, she called Mr. Clayton and was advised by him that he had heard that Thomas was in jail. She testified that Clayton requested that she not call him again, but that Clayton promised to check out the rumor he had heard and call her back. She says that Clayton did call her hack and confirmed the fact that Thomas was in jail and advised her to retain counsel.

Bill Rapert testified that he was sheriff of Randolph County in 1966, and with other officers arrested Thomas and Cowan in the act of loading whisky into a trailer at the whisky still on Janes Creek. He testified that Thomas showed him an old still site on Clayton’s farm; that the site was near the house and barn and near a creek that had gone dry. He testified that the site included a hole in the ground where the furnace had been and that the hole had some leaves and some old mash in it. He testified that he also found a box containing a small hammer and four empty one-gallon jugs within a few yards of the still site. The sheriff confirmed Thomas’ testimony as to the gates entering the place and as to the physical layout of the roads and buildings.

Scraps of tin were found on the farm by the sheriff and placed in evidence as exhibits to his testimony. Thomas identified some of the scraps as being discarded by him in Clayton’s barn when he cut the parts for the cooker, vats and worm from the sheets of metal while building the still in Clayton’s barn.

Mr. Clayton testified in his own defense and denied that he even knew Thomas, Potts, Cowan or Edna Thomas. He admitted the locked gate, hidden key and the physical set up on his farm, but denied knowledge of any whisky still or whisky still site on his farm. He denied that the creek on his farm ever went dry and denied that he ever, to his knowledge, talked to Thomas or his wife by telephone. He denied that he ever purchased tin, charcoal or sugar and denied that he ever paid Potts any amount for working on his farm. Clayton explained the scraps of tin through his own, and other testimony, that bread warmers, dog or hog feeders and other items, utilizing similar tin, had been manufactured on his farm. He explained the empty jugs found on the farm by testimony that he hauled drinking water in jugs. A $10 check from Clayton to Potts was offered in evidence and Clayton explained it as a check he gave an unknown Negro man who had pulled his automobile out of a ditch. Potts denied that he ever pulled Clayton out of a ditch. The only explanation Clayton had for Thomas, Cowan and Potts being so familiar with the physical layout of his farm was that he had advertised the farm for sale and on one occasion had shown it to three Negro men from Memphis who had answered the advertisement. Mr. Clayton made no effort to explain the old still site with some old mash in it as testified by Mr. Rapert, he denied knowing anything about a still or still site. A check from Mr. Clayton to Shoult Grocery in the amount of $56 was offered in evidence but Mr. Clayton testified that it was given for groceries and cash and not for sugar and charcoal.

Three of Thomas’ home telephone bills were introduced into evidence which showed long distance calls made from Thomas’ home number in Memphis to Clayton’s home number in Arkansas on July 8, 1966, July 11, 1966, July 17, 1966, July 24, 1966, August 30, 1966, and September 17, 1966. The September bill also showed that on September 17, 1966, a collect call from Pocahontas, Arkansas, the county seat of Randolph County, was made to Thomas’ home number in Memphis. Thomas’ home telephone number in Memphis was evidenced by the name, address and number appearing on the bills, and Clayton’s Arkansas number was evidenced by a business card the officers found in Thomas’ wallet at the time of his arrest and by Clayton’s own admission. Clayton was unable to explain these calls at all. He denied that they pertained to whisky making and his only explanation was that they could have been in connection with the advertisement of his farm for sale or pertaining to oil and supply company business which he conducted from his home. Clayton did not attempt to explain the two calls on September 17, 1966, one being from Thomas’ home number in Memphis to Clayton’s home number in Arkansas, and the other being an accepted collect call from Pocahontas, Arkansas, the county seat of Randolph County, to Thomas’ home number in Memphis. Both calls were made the day following Thomas’ arrest and he was in jail in Pocahontas on the day the calls were made. Clayton denied receiving a call from Mrs. Thomas on September 17 inquiring about Mr. Thomas and he denied calling Mrs. Thomas back and advising that Thomas was in jail.

Eugene Potts was never arrested or charged with any offense in connection with the whisky operation. He denied that he even knew that a whisky still was to be set up on Clayton’s farm, or that one ever was set up or operated on the area he cleaned off under the supervision of Clayton and Thomas while he was working for Mr. Clayton. Potts ’ status as an accomplice was submitted to the jury under proper instructions and we cannot say, as a matter of law, that Potts was an accomplice. See Paul Burke, Jr. v. State, 242 Ark. 368, 413, S. W. 2d 646, and the cases there cited.

Certainly Potts’ testimony was ample corroboration of the testimony of Thomas and Cowan to sustain the conviction. Even if the jury considered Potts an accomplice and disregarded his testimony under the court’s instructions Nos. 11 and 12, we are still of the opinion that the testimony of Sheriff Rapert as to the old still site with old mash in it and the unexplained telephone calls from Thomas’ number in Memphis to Clayton’s number in Arkansas are substantial corroborating evidence especially when Clayton denies that he even knows Thomas. Certainly the telephone call from Thomas’ number in Memphis to Clayton’s number in Arkansas and the collect call from the county seat of Randolph County to Thomas’ number in Memphis on the day after Thomas was placed in jail, corroborate Mrs. Thomas’ testimony as to her conversation on September 17 with Clayton.

We conclude that the above evidence, together with the proven .and admitted accuracy of Thomas’ testimony as to the location of the gate key and the physical layout on the Clayton farm; together with the scraps of tin, the canceled checks, the empty jugs found near the still site, and the still site itself with old mash in it, on Clayton’s farm, as testified by Sheriff Rapert, was sufficient to corroborate the testimony of Thomas and Cow-an and to sustain the conviction.

We find no merit in appellant’s second point. Certainly we agree that the jury desired that Mr. Clayton be given a suspended sentence but this court has no authority to render such judgment as we might have rendered had we been sitting as trial judges. Neither was the trial judge under any duty or legal obligation to follow the recommendation of the jury as to whether the sentence they imposed on a verdict of guilty should be carried out or suspended. This was made very clear to the jury before the verdict of guilty was rendered and the penalty was assessed by the jury. The question of guilt or innocence is a question of fact for the jury and a jury may render a general verdict as provided in Ark. Stat. Ann. § 43-2145 (Repl. 1964), or a special verdict as provided in § 43-2146. The court alone has authority to postpone the pronouncement of a sentence under Ark. Stat. Ann. § 43-2324 (Repl. 1964) or suspend the execution of a sentence under § 43-2326; and the exercise of the court’s authority under either section addresses itself to the sound discretion of the court. Suit v. State, 212 Ark. 584, 207 S. W. 2d 315.

Finding no error, the judgment of the trial court is affirmed.

George Rose Smith, J., dissents.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Eloise ELLIOTT, Adm’x v. W. E. CLARK & SONS
    5-5052
    447 S. W. 2d 129
    Opinion delivered November 17, 1969

      McMath, Leatherman, Woods & Youngdahl for appellant.

      House, Holmes & Jewell, for appellees.
   J. Fred Jones, Justice.

The only question presented on this appeal is whether the trial court erred in rendering summary judgment and entering order of dismissal as to W. E'. Clark & Sons, one of the defendants in this lawsuit. We conclude that the trial court erred.

On March 2, 1966, Ralph Elliott, an ironworker employed by Bush Construction Company, fell to his death from the ninth floor of a building under construction in Pulaski County when a defective eye loop gave way on the end of a cable supporting a swinging scaffold on which Mr. Elliott stood while working. The scaffold was supported by two cables, one at each end. The upper, or hanging end of each cable had an eye loop formed by drawing the cable around a steel ring or “honda” and weaving the end of the cable back into the main body of the cable and wrapping with wire. The scaffold had an “axle” arrangement in a drum at each end of the scaffold and one cable was threaded through a hole in each axle and secured by a steel collar babbitted onto height above the scaffold. The scaffold was raised and lowered by turning the “axle” at each end of the scaffold and winding or unwinding the cable on the axle. The eye loop at the end of one of the cables gave way causing Mr. Elliott to fall to his death.

Mrs. Eloise Elliott, as administratrix of the estate of Mr. Elliott, filed suit in the Pulaski County Circuit Court against Patent Scaffolding Company, Lyons Machinery Company, Inc. and "W. E. Clark & Sons, Inc., referred to hereafter as Patent, Lyons and Clark. The complaint alleged that Patent negligently designed, constructed and sold the scaffold and cables; that the scaffold and cables belonged to Clark; that the cables on the scaffold had become damaged and that the defendants Clark and Lyons undertook to repair the cables and in doing so, had negligently spliced the cable in a defective manner and had concealed the defect with wrapping applied around the site of the defective splice. The complaint alleged that the defendant Clark was further negligent in furnishing the defective scaffolding equipment to the decedent Elliott. All the defendants filed separate answers. Patent admitted that it manufactured the scaffoid but denied the alleged negligence.

On January 6, 1969, Clark filed a motion for summary judgment supported by three affidavits and six depositions and the motion was granted on February 7, 1969. On February 11, 1969, Patent filed an amendment to its answer specifically denying that it furnished the cable which gave way and caused the accident in this case. On February 13, 1969, Mrs. Elliott filed motion to set aside the summary judgment on the grounds that the entire lawsuit was predicated on Patent’s admission in its original answer that it had manufactured the scaffold which included the specially designed eye loop cables as a part of the scaffold. As to Patent’s amendment, the motion to set aside states:

“* * * If this allegation made by Patent is true, a* * # j£ this allegation made by Patent is true, then the whole defense of a latent defect must necessarily fail since it would appear that the cable and its wrappings were provided by either W. E. Clark & Sons or someone acting for them. At any rate, they could not claim, as they have in the Motion for Summary Judgment, that there was a latent defect in the scaffold at the time they received it and that they could not therefore be held responsible for its existence. Such a defense would absolutely be untenable if they themselves or someone acting for them provided the cable and wrappings on the scaffold.”

On March 3, 1969, the trial court denied the motion to set aside by reaffirming the summary judgment under specific findings, as follows:

“* * * Specifically, the Court finds that the scaffold from which the deceased, Ralph Elliott, fell to his death on March 2, 1966, was in the exclusive possession of Bush Construction Company from October, 1965, to March 2, 1966, as the result of a gratuitous loan of the scaffold to Bush Construction Company by W. E. Clark & Sons, Inc.; that the defect which caused the scaffold to fall with Ralph Elliott on March 2, 1966, was so latent that inspection of the scaffold and cables by both Clark and Bush personnel failed to disclose any defects which may have existed at the time of the loan of the scaffold in October, 1965; that the deceased, Ralph Elliott, was a licensee with respect to his use of the scaffold owned by W. E. Clark & Sons, Inc.; that at the time of his fatal fall, the decedent, an employee of Bush Construction Company, was not using the scaffold for any benefit of W. E. Clark & Sons, Inc; and that the scaffold was equipped with a handrail at the time it fell with the deceased, Ralph Elliott.”

On appeal to this court Mrs. Elliott relies on the following points:

“The trial court was in error in holding as a matter of law that there was a gratuitous bailment of the scaffold by Clark.
The trial court was in error in holding as a matter of law that decedent was a licensee of the scaffold and not an invitee.
The trial court was in error in holding as a matter of law that the defect in the scaffold was so latent that a reasonable inspection would not have disclosed it.
It could be inferred from the pleadings, affidavits and evidence that appellee Clark was responsible for the defect in the scaffold.
The trial court’s decision was against the weight of authority.”

Both sides have presented excellent briefs and able oral arguments, but we agree with Mrs. Elliott that Clark’s motion for summary judgment should not have been granted. The record is clear that the eye loop at the end of the cable gave way causing the scaffold to fall. It is also clear that the eye loop gave way because it was negligently formed by simply bending the cable around a steel ring or eye bringing the loose end of the cable alongside the main cable and binding the loose end to the main cable by wrapping with wire instead of weaving the loose end into the main cable, then securing with babbitt and wrapping with wire as was done on the other cable furnished with the scaffold.

It seems admitted by all parties that the cables formed a part of the scaffold when manufactured. As described in the record, the cables were irremovable from the scaffold drums without cutting the cable or removing the permanent cuff from one end or the eye loop from the other. So in the light of Patent’s amendment, if Patent did not furnish the cable involved, then someone had substituted the entire cable for the one Patent had prepared and sold through Lyons as a part of the scaffold. The record is clear that the entire scaffold was sold new to the defendant, Clark, through the defendant, Lyons. Bush was the prime contractor and Elliott’s employer on the job where the accident occurred, and Clark was a subcontractor on the same job. Clark purchased the scaffold in 1954 and had owned it 11 years before loaning it to Bush in October, 1965. Bush had retained possession and control of the scaf fold and had used it regularly for the four or five months between October, 1965, and the date of the accident on March 2, 1966.

The main question prior to Patent’s amendment was who negligently formed or attempted to repair the eye loop at the end of the cable. Since Patent’s amendment, the main question is who replaced the original cable with a defective one or who negligently formed or repaired the eye loop at the end of the cable.

The main question, however, is not before us on this appeal. We are not concerned here with who was responsible for the defective eye loop at the end of the cable, nor are we concerned here with whether Clark is, or is not, liable. We are only concerned with whether there are any issues of fact to be determined as to whether Clark is, or is not, liable.

In the case of Bull v. Manning, 245 Ark. 545, 433 S. W. 2d 145, this court said:

“A motion for. summary judgment is similar to a motion for directed verdict, in that the testimony must be viewed in the light most favorable to the ' party resisting the motion, and if there is any doubt whether a factual question exists, motion for summary judgment should be denied. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261; Keely v. Lumberman’s Mutual Ins. Co., 239 Ark. 766, 394 S. W. 2d 629.”

In the case of Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S. W. 2d 435, this court said:

“A motion for summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment. Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646. Further, where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable men might differ, then a motion for a summary judgment is not proper. Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 181 F. 2d 341 (5th Cir. 1950).”
In Wittlin v. Giacalone, 154 F. 2d 20, the court said: “... [I] t is well established that one who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, and that any doubt as to the existence of such an issue is resolved against the movant. The courts are quite critical of the papers presented by the moving party, but not of the opposing papers. Indeed, Professor Moore says in his work on Federal Practice Under the New Federal Rules:
‘Even if the pleading of the party opposing the motion is defective .and does not state a sufficient claim or defense, the motion will be denied, if the opposing papers show a genuine issue of fact.’ See Curry v. Mackenzie, 239 N. Y. 267, 146 N. W. 375.”

In the affidavit of James C. Clark, in support of the motion for summary judgment, he states that no Clark employee, to his knowledge, repaired or attempted to repair the scaffold or cables; that all Clark employees had been instructed not to repair or attempt to repair the cables, and that all repairs had been made through Lyons; that Ellis Rolax, a Clark employee, had been in charge of all of Clark’s equipment for twenty-one years; that the drum to which the cable was attached was purchased from Patent through Lyons, and that the drum was loaned to Bush in October, 1965, and was not used by the employees of Clark until after the accident; that the loan to Bush was gratuitous without contractual obligation and was for the sole benefit of Bush. The affidavit denied any knowledge of any defect in the drum.

In the affidavit of Ellis Rolax he stated that it was a part of his duties to care for, store, pick up and deliver all scaffold equipment owned by Clark; that he never made or attempted to make any repairs to the cable or drum and that to his knowledge no other Clark employee has ever made or attempted such repairs. He stated that when repairs were needed he took the equipment to Lyons for that purpose; that he delivered the scaffold to Bush and inspected the wrappings on all four cables; that the wrappings all appeared to be the same and in good repair.

Mr. B. J. Faulkner was the third affiant in support of the motion. He was the brick foreman for Clark on the construction where the accident occurred. His affidavit is somewhat garbled, perhaps by error in transcription, but in it he states:

“I am familiar with and have used most or all of the Gold Medal Junior Scaffolding drums owned by W. E. Clark & Sons, Inc., who has repaired or attempted to repair any of W. E. Clark & Sons, Inc.’s drums or cables .excepting for replacing the wooden handles on the raising and lowering arms.”

Faulkner stated that the scaffolding drums were loaned to Bush; that the scaffold was equipped with a handrail and that from October, 1965, to March 2, 1966, none of Clark’s employees used or handled the equipment.

On September 9, 1969, excerpts from depositions of Ellis Rolax, E. M. Bush, Eddie Coleman, B. J. Faulkner, James A. Bain and Bob Meredith were introduced into the record by stipulation. Mr. Rolax testified that he inspected the cables and that the eye loops and splices, including the wire wrapping around the splices, all looked alike and looked like the same kind of wire. Mr. Coleman, an insurance adjuster, testified that he inspected the cable after the accident:

“A. I don’t call myself a qualified man as to splicing a cable.
Q. What was the appearance?
A. It just came to an abrupt stop. It wasn’t raveled or no indication that it had been spliced back in the cable.
Q. Just like you had cut the cable in two?
A. Right. I guess you would say it was frayed just a little bit on the end.
Q. According to what Mr. Meredith told you, Bush had this scaffold from October to March?
A. To my knowledge, they had had it during this time.
Q. Do you know whether they were paying for it?
A. I believe they were swopping out. What I mean, they had this crane that carried supplies up.
Q. Bush did?
A. Bush did on the job to carry supplies up and materials on up to the fourth floor, and they were allowing W. E. Clark to use this crane to get their materials up and down at no charge. I mean, this is how he explained it to me, that W. E. Clark was loaning the scaffold to Bush at no charge. (Emphasis supplied) .

Mr. Faulkner testified that he did not loan the scaffold, but imagines that Jimmy Clark did. He says he had no occasion to inspect the scaffold but did see the wrapping wire from the cable splice after the accident and that it looked very similar to the wire on the other cable splices. Mr. Faulkner also testified as follows:

“Q. Mr. Faulkner, you say you’d never made any repairs on any of these cables, could someone else at Clark Equipment have made some repairs that you didn’t know about?
A. Clark Equipment?
Q. Clark and Sons, excuse me.
A. Well, anybody could have done anything as far as. . .
Q. Did you say anyone could have wrapped this cable in a fashion that it appeared to you?
A. I would say . . . no, I wouldn’t say anyone exactly, I would say someone that knew what they were doing could make it look like a factory job you might say.”

Mr. Bain, a state safety inspector, testified that the cable had not been spliced:

“A. * * * one cable, suspension cable, had been rigged through the clevis and around the eye and brought up with a loose end and a cover . wire had been tied around this loose end, it had not been woven into the cable as the other three were.”

Mr. Meredith, the job superintendent for Bush, testified that he borrowed the scaffold from Clark and had been using it for some time. Part of Mr. Meredith’s testimony is as follows:

“Q. How closely did you all inspect the eyes and the wrappings?
A. We didn’t cut them off. I mean we closely inspected them, as closely as a visual inspection would permit.
Q. You got down, picked them up and looked at them and see if they looked normal?
A. Yes.
Q. Were the wrappings all tight?
A. Yes.
Q. Could you see in between the wrappings?
A. No, thev were all dirty.
# # *
Q. Did the ends of the wrappings appear to be tucked in?
A. Everything seemed to be perfect.
Q. So the only difference that you could see would have been maybe the size of the wire on the one that gave way was a little different?
A. I didn’t state that there was any difference in the size, I stated that there was a difference in the wire itself.
Q. In the coating of the wire?
A. Well, yes. One wire is harder, was a little harder. This sixteen gange wire is a relatively soft wire that we nsed to tie reinforcing steel with, yon can wrap it and hend it and flex it more easily. This other wire appeared to he a harder annealed wire. I believe annealed may cover the same finish, I don’t know.
Q. Which wire do yon think was galvanized?
A. Beg yonr pardon?
Q. Which wrapping do yon think was galvanized?
A. The three that were on the spliced cable.
Q. Mr. Meredith, yon say yon borrowed these two swinging scaffolds and fonr drams from Clark. Am I correct that yon paid them nothing for that? They jnst loaned them to yon for gratis?
A. We paid them nothing. Let me clear that up. There are certain things ... I say we paid them nothing, maybe I paid them something in services. There is so much of that that goes on on these jobs. You scratch my bach and I’ll scratch yours. Yon know what I mean?
Q. Yon may have loaned them something?
A. No monetary, we didn’t give them any money for the nse of the scaffold.
Q. You. think you loaned them any of your equipment?
A. I’m not sure of that. I mean he might have had to use an air compressor or something. You just don’t keep up with those things.
Q. Did you inspect the wire wrappings on the broken cable?
A. Yes.
Q. Could you tell anything by looking at it?
A. Clarify this. Could I tell anything by looking at it?
Q. Well, did it appear to be a different type wire?
A. It was a different type wire.
Q. It was a different type wire?
A. It was a different type wire.
Q. How can you say that?
A. Because after we cut the wire off of these other cables it was a, oh, I think I use the correct word in saying, an annealed wire.
Q. I don’t know what you mean.
A. Well, I believe that it’s almost a certainty that the wire that was on this particular end of the cable was a simple sixteen gauge tie wire as used on any construction job in the state.
Q. What type of wire was the other wire that was wrapped on the other end of the cable?
A. An annealed, probably galvanized. I mean it was old with mortar droppings and so forth and stained, but it was a harder wire.”

One of the issues between Mrs. Elliott and Clark, made up by the pleadings in this case, is whether the decedent Elliott w.as a licensee on the scaffold and the only duty owed by Clark was to refrain from willful or wanton injury, or whether Elliott was an invitee and Clark owed him the duty to provide a reasonably safe scaffold. Whether Elliott was an invitee or a mere licensee of Clark on the scaffold belonging to Clark, would depend to a great extent on the arrangement under which Elliott was using Clark’s scaffold. Both sides recognize the existence of a bailment. Clark says the arrangement was a gratuitous bailment, making Elliott a mere licensee in the use of the scaffold, and making Clark under no duty to inspect the scaffold and liable only for its failure to disclose such dangerous defects in the scaffold as were known to Clark.

Mrs. Elliott contends that the bailment was for hire and that Clark owed a duty to exercise reasonable care in furnishing a safe scaffold to those expected to use it and to discover any dangerous defect in the scaffold and either cure the defect or inform the bailee of such defects.

The appellee Clark invites us to define the care ewed by gratuitous bailors to their bailees and other foreseeable users of chattels bailed, but that question is not presented to us on this appeal. Indeed we are not presented with the question of whether the bailment in this case was gratuitous or for hire. The only question presented on this appeal as to the nature of the bailment, is whether there was any genuine issue of fact as to whether the bailment was gratuitous or for hire at the time the motion for summary judgment was granted.

In St. Louis & C. R. Co. v. Henson, 61 Ark. 302, 32 S. W. 1079, a bridge foreman employed by the railroad was furnished with a railroad car designed for boarding the employees under the foreman’s supervision. The car was moved from place to place as bridge repair work demanded, and the foreman lived in the car and boarded the other employees. The car was derailed through a collision and the foreman’s personal property in the car was damaged. In a suit by the foreman the railroad denied liability on the theory of gratuitous bailment. In passing on a bailment instruction, this court said: “If the property of the plaintiff was carried solely for the carrier’s benefit, then the carrier was liable for slight negligence. If the plaintiff and the defendant derived a reciprocal benefit from the carriage, the defendant carrier was liable for ordinary negligence; if the transportation was exclusively for the benefit of the plaintiff, then the defendant was liable for gross negligence. ’ ’

The parties seem to agree on oral argument that the bailment in the case at bar was gratuitous if it was for the sole and exclusive benefit of Elliott or his employer Bush, and that it was for hire if it was for the mutual benefit of Clark and Elliott or Elliott’s employer Bush. See Pacific Fire Ins. Co. v. Murdoch Cotton Co., 193 Ark. 327, 99 S. W. 2d 233, and Warren v. Geater, 206 Ark. 518, 176 S. W. 2d 242. See also Bill Bell v. Ramsey, (Texas), 284 S. W. 2d 244; Meny v. Carlson, 77 A. 2d 245.

It is obvious from the record before us that if Patent did not furnish the cable on which the defective eye loop was found, that cable was later installed in the scaffold drum in the process of replacement or repair. We hold, therefore, that if Clark derived a benefit from Bush in exchange for the use of the scaffold, then the evidence of such benefit should be considered in determining the liability of Clark as a bailor of the scaffold. It is true that Clark in his affidavit said: “I lent the aforesaid drum to Bush Construction Company upon request of' Bob Meredith, a Bush job superintendent, and such loan was gratuitous and for the sole benefit of Bush Construction Company.” If this affidavit had stood alone, then there might have been no genuine issue of fact to be resolved on this point, but it did not stand alone. Eddie Coleman testified in his deposition that Mr. Meredith explained to him that Bush was allowing Clark to use a crane for lifting materials up and down at no charge, and that Clark loaned the scaffold to Bush at no charge. Mr. Meredith testified: “We paid them nothing. Let me clear that up. There are certain things. . . I say we paid them nothing. There is so much of that that goes on on these jobs. You scratch my back and I’ll scratch yours.”

In 8 C. J. S., Bailments, § 8, subsection b, p. 352 is found the following:

“In determining whether a bailment is lucrative or gratuitous, the nature and amount of the compensation are immaterial, and in order to constitute one a bailee for hire it is not necessary that the benefits be large, certain, or of any particular nature.”

We conclude, therefore, that the pleadings, affidavits and depositions still leave material facts for determination as to Clark’s liability in this case and that the trial court erred in granting Clark’s motion for a summary judgment. The judgment of the trial court is reversed and this cause is remanded for trial on the issues.

Reversed and remanded.


author: Conley Byrd, Justice.

text:
    Lawrence M. BEENE v. Myrdis D. YOUNGBLOOD
    5-5051
    447 S. W. 2d 62
    Opinion delivered November 17, 1969

      Williamson & Mattingly, for appellant.

      Cochrill, Laser, McOehee, Sharp & Boswell, for appellee.
   Conley Byrd, Justice.

Appellant Lawrence M. Beene was involved in a rear-end collision with appellee Myrdis D. Youngblood on Highway 65 near the Stark Gate Entrance to the Pine Bluff Arsenal. Mrs. Young-blood brought action against both appellant and her uninsured motorist insurance carrier, Northwestern National Casualty Company, for damages arising out of the collision. During the course of the trial a settlement was reached between Mrs. Youngblood and her insurance carrier and the trial proceeded against appellant. For reversal of the $5,500.00 judgment returned against him appellant relies upon the following points:

“I. That the lower court erred in not granting appellant’s motion for mistrial because the appellant had been highly prejudiced by the question concerning the issuance of traffic tickets asked by appellee in the presence of the jury.
“II. That the trial court erred in not granting appellant’s motion for .a mistrial after defendant, Northwestern National Casualty Company, had settled in the course of the trial with appellee.
“III. That the trial court erred in allowing the actuary’s testimony concerning total disability when the testimony had not established that appellee was totally disabled.”

POINT I. The record here shows that Mr. Herman Minden, the state trooper who investigated the accident, had described the conditions he found at the scene of the accident. At this point counsel for appellee asked, “Now then did you issue any tickets for anyone?” When appellant moved for a mistrial the trial court instructed the jury not to consider the question for any purpose and further directed counsel for appellee not to interrogate the witness any further about the matter.

Appellant somewhat in reliance upon Ark. Stat. Ann. § 75-1011 (Supp. 1967), argues that the question created prejudice of such nature and degree that it could not be removed by the court’s admonishment of the jury. We do not agree. In the first place, Ark. Stat. Ann. § 75-1011 refers to forfeiture of a bond or conviction as being incompetent testimony and makes no reference to arrest. In the next place the only apparent objection to the arrest by the officer is that it invades the province of the jury. In the case of Briley v. White, 209 Ark. 941, 193 S. W. 2d 326 (1946), in an almost identical situation we held that the trial court’s instruction was sufficient to remove the prejudice.

POINT II. The record shows that upon the convening of court on the second day of trial, counsel for appellant made the following motion:

“MR. MATTINGLY: The defendant, Lawrence M. Beene, was advised in chambers this morning that a settlement had been reached between the plaintiff, Myrdis Youngblood, and the defendant, Northwestern National Insurance Company, and that Northwestern National Insurance Company was no longer an interested party. The defendant, nor his counsel had been advised of any proposed settlement, nor had they agreed; therefore, the defendant, Lawrence Beene interposes an objection to the plaintiff proceeding further against the defendant, Lawrence M. Beene. I think that is about it.
THE COURT: Motion will be overruled.”

As we interpret appellant’s motion, it is nothing more nor less than an objection to any further proceeding against the defendant. It certainly does not amount to a motion for a mistrial and the record shows no objection made to any admonishment given to the jury in regard thereto. For this reason we find this point without merit.

POINT III. Appellee at no time contended that she was totally disabled. Her medical proof showed a permanent disability of 5 to 10% of the body as a whole, and nothing more. The proof of the actuary was based upon an assumption of an income of $173.60 every two weeks and appellee’s life expectancy. Upon these premises the actuary testified that it would take $63,927.25 to pay a sum of $376.13 a month for the life expectancy of Mrs. Youngblood. No objection was made to this proof until after the trial court had commenced instructing the jury, long after the witness had left the witness stand. At that time appellant moved to strike the actuary’s testimony.

As we view the record appellant’s objection came too late, Johnston v. Ashley, 7 Ark. 470 (1847); The American Workmen v. Ledden, 196 Ark. 902, 120 S. W. 2d 346 (1938); Arkansas State Highway Comm’n v. Maus, 245 Ark. 357, 432 S. W. 2d 478 (1968).

Affirmed.


author: Frank Holt, Justice.

text:
    THE RENDEZVOUS CLUB et al v. STATE of Arkansas, ex rel Richard B. Adkisson Prosecuting Attorney
    5-5012
    447 S. W. 2d 842
    Opinion delivered November 17, 1969
    [Rehearing denied January 12, 1970.]

      Harold Hall, for appellant.

      Joe Purcell, Attorney General; By Don Langston, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellants, The Rendezvous Club and Bill Hammer, Manager, appeal from a circuit court order holding Hammer in contempt and padlocking the premises of The Rendezvous Club for a period of one year.

On May 3, 1967, the appellee, by the prosecuting attorney, filed a verified petition and complaint against appellants in the circuit court alleging that appellant Hammer was operating The Rendezvous Club where various violations of the law were being committed. The appellee sought a temporary and a permanent injunction to abate the alleged nuisance. A temporary order was granted by the court. The appellants filed an answer denying the allegations and asked that the temporary order be vacated. On June 15, 1967, after hearing the evidence, the court found that The Rendezvous Club was a public nuisance since it was being operated in violation of Ark. Stat. Ann. § 34-101 (Repl. 1962) in that violations of the law were being permitted on the premises. The court then revoked the club’s charter as a non-profit corporation and permanently enjoined appellant Hammer from operating The Rendezvous Club in any manner whatsoever contrary to the laws of this state. The court, however, permitted the appellant to reopen the premises to operate in a lawful manner. There was no appeal from this order. Since then The Rendezvous Club has been operated as a public place.

On January 28, 1969, the prosecuting attorney filed a motion for an order to require appellant Hammer to show cause why he should not be held in contempt of court and the premises padlocked for one year for operating The Rendezvous Club in violation of the court’s permanent injunction and in violation of § 34-101 in that he suffered and permitted violations of the law by permitting his customers to consume .alcoholic beverages in a public place, by permitting minors to consume and be in possession of .alcoholic beverages, and by contributing to the delinquency of minors. The appellants duly filed a response resisting the motion of the prosecuting attorney. On February 6, 1969, the court conducted a hearing and found that appellant Hammer had operated The Rendezvous Club in violation of the permanent injunction in that he and his employees had permitted possession and consumption of alcoholic beverages on the premises in violation of the law on the date of January 24, 1969. The court held him in contempt for violation of the court’s previous order, fined him $50 and costs, sentenced him to 30 days in jail and padlocked the premises for a period of one year.

Appellants contend for reversal that the evidence is insufficient to support the findings and judgment of the court. We cannot agree with the appellants. There was evidence that about 10 p.m. on the night of January 24, 1969, law enforcement officials conducted a raid on appellant Hammer’s place of business, The Rendezvous Club. Upon entering the door, a sign was observed which read: “Everybody bring their own bottle.” The establishment was a public place, with no alcoholic beverage license, which had a cover charge of $1.25 for a man and 75c for a woman. Inside the premises the officers observed approximately 350 customers. Appellant Hammer was behind the counter furnishing waitresses with soft drinks and ice. The premises were being used primarily for dancing. The officers observed customers who had in their possession intoxicating liquor and were publicly drinking. Approximately 16 persons were arrested. It appears that four of those arrested and paying fines for public drunkenness or possessing intoxicants ranged in age from 18 to 20. There was evidence that appellant Hammer and those working for him acquiesced in the possession of intoxicating liquor and persons drinking in this public place of business.

We agree with the trial court’s statement that: “# * * j think he [appellant Hammer] has violated my order on two grounds.” One of these violations was permitting individuals under 21 years of age to possess intoxicating liquor on the premises. It is unlawful for any person under 21 years of age to have in possession any intoxicating liquor, wine or beer. Section 48-903.1 (Supp. 1967). Another violation which appellant permitted to occur was the drinking of intoxicating beverages on these unlicensed public premises, as well as public drunkenness. Section 48-943 (Repl. 1964); Berry y. City of Springdale, 238 Ark. 328, 381 S. W. 2d 745 (1964).

We think the evidence of public drinking and possession of intoxicating liquor constitutes ample evidence of violations of the court’s previous order that the appellant must not suffer or permit a violation of the law in any manner upon the club’s premises. Section 34-101, et seq.; Vandergriff v. State, 239 Ark. 1119, 396 S. W. 2d 818 (1965).

Appellants rely primarily upon Click v. State, 206 Ark. 648, 176 S. W. 2d 920 (1944) and Alston v. State, 216 Ark. 604, 226 S. W. 2d 988 (1950). We do' not consider these cases applicable to the case at bar since they do not pertain to the violation of a permanent injunction. We consider this case as being controlled by our decision in Vandergriff v. State, supra, which involved a violation of the court’s permanent injunction.

Affirmed.


author: Carretón Harris, Chief Justice.

text:
    EMPLOYEES MUTUAL LIABILITY INS. CO. OF WISCONSIN v. PURYEAR WOOD PRODUCTS CO.
    5-5053
    447 S. W. 2d 139
    Opinion delivered November 24, 1969

      Rose, Meek, House, Barron, Nash & Williamson, for appellant.

      Gill & Clayton, for appellee.
   Carretón Harris, Chief Justice.

This appeal relates to the construction of certain words appearing under the exclusions section in an insurance policy, the policy providing that it does not apply to property damage to:

“(2) property used by the insured, or
(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control; ...”

According to the stipulation entered into by the parties to this litigation, Puryear Wood Products Company, Inc., appellee herein, hereafter called Puryear, operated a sawmill at Mitchellville, Desha County, Arkansas, and had contracted with one Clifford Landon of Dumas to haul sawdust away from its plant. The sawdust was blown through a system of pipes from the plant to a point approximately 300 feet from the buildings, but still on appellee’s property, and Landon or an employee, would park one of his trucks and trailers at that particular location. Employees of Puryear would then insert the pipe into the rear of the trailer, and the sawdust was blown into this trailer until it was full. It usually took about two days for the trailer to be filled, and when it was full, one of Puryear’s employees wopld call Landon, and he would drive the truck and trailer away. Landon had instructed Puryear that when the truck needed moving, to call him, because he did not want anyone else to move it; while a trailer was being filled, it was left unattended.

The previous paragraph sets out the manner of operation in general, and about the 15th of June, 1967, Landon had parked a truck and trailer at the aforementioned site for the purpose of having it loaded with sawdust; one of appellee’s employees inserted the blow pipe into the rear of the trailer, and it was thereafter left unattended. After some period of time, and while the sawdust was being blown into the trailer, a fire of undetermined origin started in or about the sawdust, or in or about the trailer, and damaged the trailer. At the time this happened, Landon’s tractor was attached to the trailer, and the keys were in the ignition. Thereafter, Landon instituted suit in the Circuit Court of Desha County against Puryear seeking to recover damage caused by the fire to his trailer. Appellee held a policy of liability insurance in the sum of $100,000.00 with Employers Mutual Liability Insurance Company of Wisconsin, appellant herein. Under the contract, the company agreed to pay on behalf of the policyholder all sums which Puryear should become legally obligated to pay as damages because of property damage. Puryear contacted the insurance company after being sued, but the latter declined to defend the suit on behalf of Puryear, contending that the exclusions (previously set out in the first paragraph) made the coverage of the policy inapplicable to property used by Puryear or property in its care, custody or control, or as to which it for any purpose was exercising physical control. Suit was instituted by Puryear, seeking a declaratory judgment to the effect that the insurance company was obligated under the policy to provide coverage and to defend against the Landon suit. After the filing of an answer, the cause was submitted to the court on a stipulation embracing the facts heretofore set out. The court found, as follows:

“Based upon the stipulated facts and applicable authority, it is the finding of this Court that the defendant has not sustained its burden of proving that the plaintiff had possessory control of the trailer at the time of the occurrence, and that plaintiff was not ‘using’ the trailer and did not have the ‘care, custody or control’ of the trailer within the meaning of these terms as used in said policy, at the time of the occurrence; and that defendant has the duty under its insurance policy to defend the suit by Clifford Landon against the plaintiff.”

From the judgment entered in accordance with this finding, appellant brings this appeal. For reversal, it is asserted that the trial court erred in holding that appellant company was obligated to afford Puryear a defense to the Landon complaint, and to pay any judgment rendered against Puryear.

At the outset, it might be mentioned that appellant’s duty to defend the Landon suit would normally be determined by the allegations in the Landon complaint. We have held that the allegations in a complaint determine the obligation of the insurer to defend its insured Fisher v. The Traveler’s Indemnity Company, 240 Ark. 273, 398 S. W. 2d 892, and cases cited therein. However, appellant does not contend that this court, in determining this question, is confined to those allegations. That complaint alleges that the trailer was in the care, custody and control of Puryear, but it also alleges that the damage to the trailer was a result of the negligence of Puryear. Since it would be possible that a jury could find that the loss was due to Puryear’s negligence without also finding that the trailer was in its care, custody and control, it is apparent that appellant’s obligation to defend cannot be determined simply from the allegations in the Landon complaint.

It is argued by appellant that Landon had surrendered to Puryear the care of the trailer and its custody and control, and Puryear was thus a bailee, i. e., the custodial possession of Puryear was in legal effect a bailment. The case of Bertig v. Norman, 101 Ark. 75, 141 S. W. 201, defines a bailment, and appellee’s argument is that a bailment carries with it the surrender of possession and custody. However, the stipulation sets out that Puryear did not have the right to move the truck and trailer, and, in fact, if it should become necessary that same be moved, appellee was required to notify Landon, who would then send a driver to move the vehicle; because of this fact, we cannot agree that there was a surrender of possession or custody, and Bertig v. Norman, supra, points out this distinction.

In 62 A. L. R. 2d, Page 1244, in an annotation, “Liability Insurance — Custody of Insured,” it is pointed out that no rule of general .application can be deduced from the cases that have been decided, on the question of the meaning of “care, custody or control” of insured. It is stated:

“In construing the particular type of exclusion clause with which this annotation is concerned the courts have applied the underlying principle which governs the construction and interpretation of contracts of insurance generally. Thus, they have specifically stated that the rule that insurance policies, having been prepared by the insurer, must, if ambiguous, be construed most strongly against it and in favor of the insured, fully applies to such exclusionary provisions. Curiously enough, in applying this principle, the cases considered herein have reached opposite conclusions as to the existence of ambiguity.”

It is interesting to note that there is authority to the effect that the care, custody, or control exclusion clause is inherently ambiguous, but, on the other hand, it has been said that the language is clear and unambiguous, and, accordingly, must be given the plain and ordinary meaning of the terms used. A discussion of all the cases would require a lengthy manuscript, and such a discussion would not be justified, since we, .after a study of the exclusionary provisions, are firmly of the opinion that the language is ambiguous, and being ambiguous-, the provisions must be construed against the maker, and in favor of the insured. The very fact that courts of the several jurisdictions have arrived at different constructions as to the meaning of the words under discussion, and even in some instances have gone so far as to take almost opposite views, is certainly some indication that the terms, in the context used, are ambiguous.

Here, appellant relies principally upon the Washington case of Madden v. Vitamilk Dairy, Inc., 367 P. 2d 127. There, the Supreme Court of Washington held that a milk tanker truck which was parked by the owner in the unloading area of the dairy, the employees of the latter being responsible for unloading the milk, and washing the tank, and who gave the directions as to movement of the truck, was under the “care, custody or control” of the dairy, and the exclusionary clause excluding coverage for damage to property under “care, custody or control” of insured was applicable. Appellee refutes that case with the Texas case of Maryland Casualty Company v. Golden Jersey Creamery, 389 S. W. 2d 701. There, the court mentioned that Maryland Casualty was relying principally on Madden, and proceeded to distinguish the case as follows:

“* * * In Madden, it appeared that the driver would surrender to the dairy or creamery employees the possession, care and control of the milk tank-truck until it had been unloaded, washed, cleaned and returned to him. Such is not the case here. In this case, the fact that an employee of appellee would receive from the driver of the milk tank-truck a hose connected to the tank and an electric cord for supplying power to the pump on it, would not conclusively place the tank-truck in the care, custody and control of appellee. These steps were merely incidental to the receipt of milk by appellee, which was a necessary function in the operation of its business on the premises.”

The court also commented:

“The words ‘care, custody and controP have been held to mean ‘in charge of’ or ‘in charge’ by the decisions. See Great American Indemnity Co. of New York v. Saltzman, 213 F. 2d 743 (8th Cir. 1954), in which, at page 748, the Court said:
‘AVhile the word “charge” has a very broad, and varied meaning (McLoughlin v. Shaw, 95 Conn. 102, 107, 311 A. 72), a person or thing is not “in charge of” an insured within the meaning of the policy unless he has the right to exercise dominion or control over it.’ (Emphasis supplied by the Court).”

Again, we call .attention to the fact that, under the stipulation, appellee did not have the right to exercise dominion or control over the truck and trailer, but, to the contrary, was required to notify Landon, who would send a driver, if the truck needed to be moved.

Our own case of Hardware Mutual Casualty Company v. Crafton, 233 Ark. 1020, 350 S. W. 2d 506, points out that the construction of the phrase, “care, custody and control,” is, to a large extent, dependent upon circumstanees, but that, in a general way, the word, “care,” has reference to temporary charge; the word, “custody,” implies a keeping or guarding, and “control” refers to the power, or the authority, to manage, superintend, direct, or oversee. It has already been pointed out that appellee certainly did not have the authority to do anything with the trailer, except to fill it, and there is no contention that Puryear was obligated to guard the property. It was well known that the filling operation was conducted in the absence of the Puryear employees.

We agree with the trial court that appellee did not have the care, custody, or control of the trailer within the meaning of those terms as used in the policy, at the time of the occurrence.

As to the word, “used,” this court, in Maryland Casualty Company v. Turner, 235 Ark. 718, 361 S. W. 2d 646, mentioned that this word is, to some extent, employed by insurance companies .as a substitute for the phrase, “care, custody, and control,” in exemption clauses in liability policies. In addition, we certainly think this word is ambiguous, as used in the policy. Appellant, of course, argues that the trailer w.as being used because it was the receptacle for the sawdust. On the other hand, appellee contends that Puryear only had access to the trailer; that the actual operation was the blowing of the sawdust, and the instrument used in that operation was the pipe which had been inserted into the trailer. Puryear was not directing the operation in any way, and only had the duty to blow sawdust into the back of the trailer. It is, of course, true that appellee was only interested in getting rid of its sawdust, and there was no reason for it to have any interest in the method that Landon used to collect and haul away the sawdust. Possibly, cartons, crates, barrels, or other contrivances, though not nearly so convenient, could have been used to receive the sawdust, and subsequently placed on a truck or trailer bed by Landon employees. At any rate, we consider the term ambiguous.

It has already been pointed out that physical control or possession was not being exercised over the property, no Puryear employee being present, nor having the right to do anything with the tractor and trailer. The truck was left unattended by Landon’s driver through his own choice, and the driver could have remained in the truck while it was being filled, but elected not to do so. As pointed out in appellee’s brief, if we assume that the driver had remained in the truck, could it then be contended that Puryear had control of the trailer Í

From what has been said, it is apparent that we consider the stipulated fact that Puryear could not move the truck and trailer, and would, have to call Landon to send a driver (when the trailer was full) to be most important, for this is certainly pertinent to the question of whether the truck and trailer were in the care, custody, or control of appellee.

We hold that there was substantial evidence to support the trial court’s judgment.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. W. D. PHILLIPS, Jr. et ux
    5-5068
    447 S. W. 2d 148
    Opinion delivered November 24, 1969

      Thomas R. Keys, Virginia Tackett and Hubert Graves, for appellant.

      J. Marvin Holman, for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation case. The Arkansas State Highway Commission, appellant herein, condemned 11.11 acres needed for the construction of Interstate Highway No. 40 in Johnson County, Arkansas, the property condemned belonging to W. D. Phillips, Jr., and Wanda Phillips, his wife, appellees herein. On hearing, Mr. Phillips testified that the total damages to his property amounted to $12,500.00. H. C. Yarbrough, a witness for appellees, testified that damages, in his opinion, amounted to $11,-720.00. Dee Evans, a real estate dealer of Johnson County, listed damages as $10,691.00. The jury returned a verdict for $9,000.00, and from the judgment so entered, appellant brings this appeal.

For reversal, two points are asserted: First, that the court erred in refusing to strike the testimony of H. C. Yarbrough as to the value of the property remaining after the taking, on the grounds that he had not seen the right-of-way maps or construction plans prior to testifying. The same alleged reversible error is also asserted with reference to the testimony of Dee Evans.

We do not agree with these contentions. In the first place, the point listed by appellant as to Yarbrough’s testimony, does not conform to the motion that was actually made. The motion made was as follows:

“We would like to move to strike this man’s testimony. It is obvious he doesn’t know what was out there when he looked at the after value, neither did he know as to the control of access and what was there after the taking.”

We nave stated on numerous occasions that if any part of the witness’s testimony is admissible, it is improper to strike all of his evidence. As stated in Arkansas Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802:

“A motion to exclude all the testimony of a witness is properly overruled if a part of it is competent.”

That holding is applicable here. Not only that, but Yarbrough’s testimony makes clear that he had gone upon the property and observed and examined the construction. As to Evans, this witness testified that he did look at the construction plans for Interstate 40, but added; “I don’t think that I would have to study them too much.” His overall testimony clearly indicates that he did view the maps and plans. We find no error.

Affirmed.


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. H. B. HAMMOND et al
    5-5047
    447 S. W. 2d 664
    Opinion delivered November 24, 1969

      Thomas B. Keys and George O. Green, for appellant.

      Mobley, Bulloch & Harris and George J. Cambiano, for appellees.
   George Rose Smith, Justice.

In this condemnation case the Highway Commission is taking, for Interstate 40, 12.02 acres of a 102-acre tract belonging to the appellees. The jury fixed the landowners’ compensation at $60,000. For reversal the Commission contends that the trial court should have stricken the value testimony of the landowner Hammond and that of his supporting witness Tatum. We agree.

Hammond bought about 142 acres in 1963 for $25,-000. Before the trial he had sold 40 acres for $10,000, leaving him with an investment of $15,000. He testified, however, that the value of the remaining 102 acres was $132,400 before the taking and $52,250 after the taking, making a difference of $80,150. His witness Tatum gave substantially the same figures. In fact, the testimony of the two men was so nearly identical as to values that it is quite evident that they reached their conclusions jointly-

Hammond, in putting a value of $132,400 upon land for which he had paid $15,000 about four years earlier, regarded the land as peculiarly suitable for the creation of minnow ponds by the construction of levees and for the production and sale of minnows at wholesale and retail. He put a value of $3,000 an acre upon 17 acres of ponds that had been actually completed before the taking. He put a value of $2,000 an acre upon the rest of the lowland, as a potential site for ponds, and a similar value of $2,000 upon five acres of higher ground that were to be used as the headquarters for the minnow-raising operation.

In the condemnation proceeding the Commission took the five-acre site of the proposed headquarters. Hammond testified that as a result the value of the ponds was reduced from $3,000 to $500 an acre and the value of the pond sites from $2,000 to $200 an acre. Those reductions, plus the asserted worth of the 12.02 acres actually taken, made up Hammond’s claim of $80,150. By contrast, the Commission’s two expert witnesses, neither of whom was especially qualified in the field of minnow raising, respectively fixed the landowners’ loss at $5,750 and $6,850.

We find in the record no substantial basis for Bammond’s estimates of value, nor for those of his witness Tatum. We need discuss only Hammond’s testimony, for Tatum’s estimates of value are subject to the same criticisms. Shortly before the taking Hammond had leased some of the property for the production of minnows, but he himself had had no practical experience in that activity. Glaring gaps in his testimony include his failure to explain just why five acres are needed as a headquarters for the proposed operation; why the headquarters, if really needed, could not be built on some other part of the tract; and why the taking of the proposed headquarters site would reduce the value of the ponds and pond sites in the amounts to which he testified.

Hammond gave no reasonable basis for valuing the ponds at $3,000 an acre before the taking and the pond sites at $2,000 an acre, nor for reducing those values to $500 and $200 after the taking. He said that he had read about some sales of minnow farms in the 1950’s and 1960’s, “ranging from $800 an acre,” but he had no firsthand knowledge of any of the details, including the vital matter of comparability. His figures, as we observed in a similar situation in Ark. State Highway Comm’n v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 3d 749 (1962), had no relation whatever to any fact in the record and were apparently plucked from the air.

On motion the trial judge instructed the jury to disregard all of Hammond’s testimony, except that as the owner of the property “he will be permitted to state in his opinion the value of this property prior to the taking and after the taking.” A similar instruction was given with respect to Tatum’s testimony. That view involves a misconception of our holding in Ark. State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966), which the court mentioned as a basis for his ruling. Under that decision, and the cases that have followed it, a witness’s estimates of value should be strickon entirely when he is unable to give a fair and reasonable basis for his conclusions. That course should have been followed in the court below, which would have left no testimony to support the verdict.

Reversed.


author: Lyle Brown, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. A. B. LITTLEFIELD and W. C. Littlefield, d/b/a Tri-County Oil Co.
    5-5071
    447 S. W. 2d 146
    Opinion delivered November 24, 1969

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Ralph W. Robinson, for appellees.
   Lyle Brown, Justice.

Appellant, Arkansas State Highway Commission, condemned 0.31 acres out of a 6.40 acre tract belonging to appellees, A. B. and W. C. Littlefield, d/b/a Tri-County Oil Company. The crucial question on appeal is whether the coming of Interstate 40 influenced the before values introduced on behalf of the landowners.

The subject lands are located in the southeast corner of the 1-40 interchange at Alma. That is at the point in Crawford County where U. S. Highways 64 and 71 have converged for many years. The landowners are large-scale and long time distributors of oil and gas in western Arkansas and eastern Oklahoma; in some instances they operate their own retail outlets. On this tract they built a modern truck stop. W. C. Littlefield and the landowners’ expert witnesses testified that the location was valuable because of the convergence of Highways 64 and 71. In fact they all testified that the coming of 1-40 in no manner influenced their fixing of the before value. If on the date of the taking the market value of the land had been inflated by the imminence of 1-40, then the inflated value could not be used in arriving at the before value of the property. Arkansas State Highway Comm’n v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1967).

The landowners and their three expert witnesses used what they considered one comparable sale. That was Dunn to the Littlefields, February 24, 1965, for $90,000, being the identical 6.40 acre tract. It was their opinion that the coming of 1-40 had no impact on that sale. It was the further opinion of the Littlefield’s experts that immediately prior to the taking in May 1965 the tract was worth $133,000. They .attributed the increase in value to skyrocketed prices generally and to a fill which the Littlefields made on the land.

"Whether the Littlefields and their experts had knowledge that the 1-40 project had an inflationary impact is irrelevant; if the record evidence shows that such condition arose from the project then we must recognize that condition as an economic fact. It was pointed out in Griffin that highway condemnation proceedings are usually instituted after months and years of discussion and planning, all of which are well known to owners and other persons interested in land in the vicinity of the improvement. If the project is going to be injurious to the neighborhood, that fact cannot but fail to have a depressing effect upon values.” If the improvement is bound to benefit some or all the surrounding land then that fact is likewise generally known and values naturally rise. No economic fact is more thoroughly established and it cannot be disestablished by a landowner or expert whose opinion, however honest, contravenes it. We have examined the record in light of our comments and here is what we find:

(1) An expert for the landowners testified that the land in the area of the interchange was worth $1,000 an acre in 1952;

(2) By 1960 preliminary planning was so far advanced that the proposed route of 1-40 was publicized on tourist maps distributed free to the public by the highway commission;

(3) In 1961 surveyors and engineers were busily engaged in the vicinity of the proposed Alma interchange ;

(4) In 1963 traffic count maps were issued showing the proposed location of the interchange;

(5) Cecil Dunn, consignee for Skelly Oil Company, acquired the subject property in 1963 for $30,000;

(6) In June 1964 construction plans were issued and made available to the public; minor changes thereafter made as respected the Alma interchange did not affect the subject property;

(7) Six months later D-X Oil Company paid $30,-000 for 1.8 acres at the interchange;

(8) Humble Oil Company, in February 1965, paid $59,000 for three acres;

(9) The Littlefields, with financing from Skelly Oil Company, bought their acreage in February 1965 for $90,000; and

(10) Three months after the Littlefields’ purchase, the highway commission filed its condemnation and thereby obtained an order of taking. The Little-fields’ appraisers valued the subject lands at that time at $133,000, or $20,800 an acre.

The landowners afford no plausible explanation as to why the lands increased in value some $60,000 from 1963 to 1965 — the period during which Cecil Dunn held the title; nor why it would increase from $90,000 to $133,000 within three months. The latter increase allegedly occurred between the time of the Littlefields’ purchase and the taking. The inescapable conclusion is that the increases resulted from the 1-40 interchange.

We should mention one other point because of a probable retrial. It was revealed on cross-examination that the landowners’ witness, Mack Bolding, did not take into consideration in making his appraisal the plans aiid specifications for construction of 1-40. (Those plans were set up in the pleading filed by the commission.) The after taking value cannot he properly ascertained in the manner followed by Bolding. An appraiser, in viewing the lands after a partial taking, must consider the remainder as if the improvements were in place according to the plans and specifications. To proceed otherwise could well cause an injustice to either the condemnor or the landowner. For example, plans and specifications are vital to a determination of such factors as damages to the remainder, as well as possible enhancement in value.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Fred CASSADY v. STATE of Arkansas
    5450
    447 S. W. 2d 144
    Opinion delivered November 24, 1969

      Thomas S. Stone, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of the crime of escape from The Arkansas State Department of Correction on March 2, 1969. The sole ground for reversal is the assertion that the jury verdict finding appellant guilty was contrary to the evidence. The gist of appellant’s argument here is that there was not sufficient proof as to his intent to escape.

The only witness presented hy the state was Denison Walker, a warden at the Cummins branch of The Arkansas Department of Correction. It is undisputed that appellant occupied a status such as to entitle him to fishing privileges on Sundays. On the Sunday on which the crime was alleged to have been committed, he had permission to go fishing at Beaver Hole on the prison farm. He cheeked out at the gate near the main building and proceeded to the fishing place. Some four to five hours later the warden received a report that four men were trying to escape. Appellant was apprehended at a point some four miles upriver from the prison farm after bloodhounds had been utilized for pursuit. He was hiding in some bushes along a levee about m miles from the river. He had no fishing equipment of any kind in his possession when apprehended. Walker testified that there was a gate past the north end of Beaver Hole and a fence between that gate and the river through which appellant would have had to climb or go.

Appellant testified that the fish were not biting at Beaver Hole, so he went on down the river to fish at a lock and dam where the water was confined. According to him, he had been down on the river and off the state farm several times and always came back. When he heard the dogs, he knew that they were pursuing him. His explanation for the situation in which he was found was that, realizing he was in trouble, he left his fishing equipment and started up the levee to get back to state property before anything was said to him. He denied that he had any intention of escaping, but admitted that he knew that he was violating the rules and was off the prison grounds. His explanation was that he .and other convicts had done this before and nothing was said. Yet, he would not say that the prison officials knew of these incidents which he stated were common practice among the prisoners. While he denied that he crawled through or over a fence when he left the state propery, he admitted that he went down to the river’s edge and went around it. Cassady testified that he was hoping that the dogs would pass him while he was hiding and that he could then get back to the Beaver Hole without being caught. He knew that action would have to be taken against him if he were were caught. He testified that he stayed at Beaver Hole only about 45 minutes, and that if he had been trying to escape he could have gone much farther than he did.

The punishment for escape is provided in Ark. Stat. Ann. § 41-3508 (Bepl. 1964). Since the crime is not defined by our statutes, it is necessary that we resort to common law for a definition of the crime. The crime is committed by a prisoner under lawful arrest and restraint when he goes away from his place of lawful custody before he is released or delivered by due course of law. Houpt v. State, 100 Ark. 409, 140 S. W. 294, Ann. Cas. 1913C 690. It is committed when a convict serving his term of imprisonment leaves the bounds within which he is required to remain. Jenks v. State, 63 Ark. 312, 39 S. W. 361. When the common law definition of the crime is followed, an intent to escape, i. e., to avoid the due course of justice, is a necessary element of the crime. Gallegos v. People, 159 Colo. 379, 411 P. 2d 956 (1966); Chandler v. United States, 378 F. 2d 906 (9th Cir. 1967). Criminal intent or purpose is a fact which cannot, in the nature of things, be positively known to others. It is an inference of fact that a jury may draw from the facts and circumstances existing and shown. Shell v. State, 184 Ark. 248, 42 S. W. 2d 19. The existence of the requisite intent is a question of fact for the jury when the evidence shows facts from which it may reasonably be inferred. Huie v. State, 139 Ark. 241, 213 S. W. 380.

In this case the fact that when discovered appellant was hiding ,at a place off the Department of Correction grounds when he had no permission to be there, constituted sufficient evidence from which a jury might reasonably have inferred that he intended to regain his liberty before being released in due course of law.

The judgment is affirmed.


text:
    Roe HIGGINBOTTOM et ux v. J. B. HIGGINBOTTOM et ux
    5-5058
    447 S. W. 2d 149
    Opinon delivered November 24, 1969

      Sullivan & Causbie, for appellants.

      ■D. Leonard Lingo and Harry L. Ponder, for appellees.
   J. Fred Jones, Justice.

On October 29, 1958, Hardy Higginbottom, then 86 years of age, undertook to convey by warranty deed to his youngest son, Roe, an interest in Sharp County land under description as follows :

“My undivided one-half interest in and to the following described lands, to-wit: A part of the WV2 SE14 Sec. 20, Containing 76 acres; the NW% NE14, Sec. 29 containing 40 acres, all in Twp. 17 N. R. 4 west, subject to a mortgage to the Federal Land Bank of St. Louis.
Reserving unto my self all of the use and benefits including all rents profits from the above lands and premises.”

The deed recited $10 and other consideration but Roe testified that he considered the conveyance as a gift of the land, prompted perhaps by the fact that he was the youngest child and had suffered some financial reverses. The deed was mailed to Roe at his home in Indiana soon after it was executed but was not placed of record in Sharp County until soon after Mr. Hardy Higginbottom died intestate on December 8, 1965.

Roe took possession of the lands under the deed and on May 2, 1966, the other children of Hardy Higginbottom filed suit in the Sharp County Chancery Court to set the deed aside on various grounds, including undue influence, incompetency of the grantor, and a void description as to the 76 acres. The complaint prayed also for an accounting and partition. The chancellor found that Hardy Higginbottom was competent and under no undue influence at the time the deed was executed; that the deed was a volunary conveyance and conveyed good title to the 40 .acre tract accurately described, but conveyed no title to the 76 acres because of inaccurate and void description. The decree recites as follows:

“Therefore, it is by the Court considered, ordered, adjudged and decreed that the deed executed by Hardy Higginbottom, deceased, to Roe Higginbottom, dated October 29, 1958, and appearing of record in Deed Record A-5 at page 483 in the Recorder’s Office for Sharp County, Arkansas, insofar as It relates to part of the West Half (W%) of the Southeast Quarter (SE]4) of Section Twenty (20), containing 76 acres, in Township Seventeen (17) North, Range Four (4) West, subject to a mortgage to the Federal Land Bank of St. Louis, be, and the same is hereby, cancelled, set aside, and held for naught. It is further considered, ordered, adjudged and decreed by the Court that said deed insofar as it relates to the Northwest Quarter (NW!4) of the Northeast Quarter (NE%) of Section Twenty-nine (29), containing 40 acres, in Township Seventeen (17) North, Range Four (4) West, subject to a mortgage to the Federal Land Bank of St. Louis, is a valid conveyance of said 40 acre tract of land and by reason thereof the defendant, Roe Higginbottom, is vested with title to an undivided one-half interest by reason of said conveyance.
This cause is hereby continued for further proceedings on the prayer of plaintiff’s complaint for a partitioning of said lands and accounting for rents.”

Roe Higginbottom has appealed from so much of the chancellor’s decree that holds the deed void as to the 76 acres and states his point relied on as follows:

“The court erred in rendering a decree in favor of the plaintiffs for the following reasons:
1. Because of the basic principle laid down by this court in the case of Dorr v. School District No. 26, etc. wherein the court stated that a deed is not to be held void for uncertainty if by any reasonable construction it can be made .available.
2. Because the plaintiffs in the allegation in their complaint at page 1 of the transcript used the same description that is set out in the deed, about which they complain. Then the defendants in their answer admitted that they were in possession of that same land. There was no dispute in any part of either the complaint, the answer or the evidence with regard to the land that was involved.
3. Because it is admitted by the appellees that there is no dispute about the land that is involved in the law suit. In the discussion of the case during the trial one of the (attorneys for the appellees said: ‘There is no question but what a family group of people here in Sharp County, own certain land in Sharp County. There is no question about who it is that make up that family group. There is no question .about what land they own. There may be some argument about the interest — the amount of interest that different ones of them have in the tract— but there is no question about the identity of the individuals that do own the tract of land and there is not .any argument about what that tract of land is.’
4. Because the appellees in their allegation used the description that they say is indefinite and the defendants in their answer .admitted that they were in the possession of the land that had been set forth in the complaint of the plaintiffs. Or, in other words the plaintiffs state that the land is described a certain way. Then the defendants answering admit that the land of which they took possession is the same as described in the complaint. The plaintiffs are, in effect, attacking their own description.”

The appellant cites in support of his argument on the point relied on, Dorr v. School District, 40 Ark. 237, and Walker v. David, 68 Ark. 544, 60 S. W. 418.

The Dorr case is distinguishable from the case at bar on the facts. In Dorr a Mr. Edwards donated three acres of land for a church, schoolhouse and cemetery. The property was surveyed and described by metes and bounds and a plat was made and recorded. A church .and schoolhouse were built and a cemetery was established on the land. The cemetery had been dedicated for more than ten years when Dorr, who had purchased from Edwards the entire quarter section in which the three acres was included, brought suit in ejectment against the school district. The deed to the school district described the land ,as follows:

“A certain parcel of land lying and being in the county of Independence, commencing at a black-gum tree standing near the road and graveyard, near the residence of Benjamin I. Edwards, running north 40 poles to a stone, thence east 12 poles to a stone, thence south 40 poles, thence west 12 poles to the place of beginning, containing three acres, including said school house and graveyard.”

In Walker, the grantors owned no other land than that conveyed and they put their grantee into possession. This court’s own language in the Walker case distinguishes it from the case at bar. In Walker this court said:

“The circumstances here are that Cook and his wife owned the north half of the west half of the southwest quarter of section 30, containing 44 acres, and owned no other land in that section. The land was improved and nearly all under fence. They sold it to Lymus Walker, and put him in possession of it, describing it in the deed which they executed and delivered to him as the north part of the southwest quarter of section 30, etc., containing 44 acres, more or less. Now, apart from the circumstances surrounding the conveyance, ,a description of that kind shows prima facie an intention to convey 44 acres off the north part of the west half of the quarter section laid off in the shape of a rectangular parallelogram with the north line of the west half of the quarter section as one of its sides. Watson v. Crutcher, 56 Ark. 44. The proof shows that a rectangular tract containing 44 acres laid off in that way in the north part of the west half of the quarter section would take exactly the north half of the west half of the quarter section. And the circumstances in proof show that such a construction of the deed coincides with the intention of the parties thereto. Though a description in a deed which is clear and unambiguous cannot be set aside by parol proof of the acts of the parties, either before or after the deed, still in a case of doubtful description it is competent to look to the construction placed on the deed by the parties themselves as an aid to ascertain its meaning. 1 Jones, Beal Prop. § 334; Har ris v. Oakley, 130 N. Y. 1.” (Emphasis supplied).

In the case at bar it is apparent that the parties all knew the location of the land involved and the extent of the land owned by Hardy Higginbottom, as argued by the appellants. But it is also apparent from the record that Hardy Higginbottom did not attempt to include in the deed, all the land he owned and that he did in fact own other land not included in the deed to Boe. There is nothing in the record to indicate that the grantor did not own the remaining part of the west half of the southwest quarter of Section 20, other than the 76 acre part recited in the deed. The chancellor obviously recognized the problem Boe would encounter in attempting to separate the 76 acre part conveyed to him from the remaining part that was not conveyed, in the event he should attempt to convey title by deed to the land he owned, or in the event of partition.

The chancellor found that the conveyance was a voluntary gift, and this finding is supported by the evidence, No reformation of the deed is requested and there was no contractual obligation or consideration to support reformation. We agree with the appellees that this case is controlled by the rules announced in such cases as Smith v. Smith, 80 Ark. 459, 97 S. W. 439; Moore v. Jackson, 164 Ark. 602, 262 S. W. 653, and the other cases cited by the appellees and that the decree of the chancellor should be affirmed.

Affirmed.

Bybd, J., not participating.


text:
    Dudley BRADBERRY v. Frank GOWER et al
    5-5084
    447 S. W. 2d 124
    Opinion delivered November 24, 1969

      Camp & Lingle, for appellant.

      Quy Brinkley, for appellees.
   Conley Byrd, Justice.

In this unlawful detainer action, appellant Dudley Bradberry admits that he has been in possession of lands belonging to appellees Frank Gower, Tommy Thompson, Virginia Thompson, Bill Foster and M.ary Foster as a tenant from year to year and that he was served with proper six months notice to quit and vacaté the premises. Appellant’s defense in the trial court was that a new oral lease had been entered into between himself and Frank Gower after he was served with the termination notices. Appellant’s testimony was corroborated by his son and two long time employees relative to a conversation around a combine in a field. Appellee Gower denied that such a conversation took place. The jury found the facts contrary to appellant’s position.

For reversal, appellant asserts that the verdict was contrary to the law and the evidence. We find no merit in this contention. The jury is the sole judge of the credibility of witnesses and we must affirm when there is substantial evidence to support the jury’s finding.

Affirmed with directions to the Clerk of this Court to issue an immediate mandate..


text:
    L. O. GALYEN and Freda GALYEN v. Mrs. Opal GILLENWATER
    5-5034
    447 S. W. 2d 137
    Opinion delivered November 24, 1969

      Robinson & Booth, for appellants.

      Floyd O. Rogers, for appellee.
   Frank Holt, Justice.

Appellee and appellants are adjoining landowners. Appellee brought this action against the appellants alleging that a mutual mistake was made in both of their deeds from a common grantor and that appellants had erected a fence upon appellee’s property “which is encroaching upon the property of plaintiff [appellee] 89 feet.” The appellee seeks reformation of both deeds, the quieting of her title, and asks that appellants be restrained from encroaching upon appellee’s property.

The chancellor found there was an erroneous description in the 1941 deed to Ralph Gillenwater who is the common grantor of appellants and appellee; that Gillenwater immediately went into possession of the property and enclosed, improved and maintained sufficient adverse possession of it for more than the required length of time; that in 1964 he conveyed the back one-half (%) .acre to the appellants based upon this inaccurate description; that approximately three years later he conveyed the balance or the front one-half (%) acre to his brother, now deceased, and his wife, the .appellee; that the descriptions in the deeds did not reflect the true intentions of the parties and that appellant L. O. Galyen, who is a real estate agent, was aware there was a mutual mistake in the descriptions in his deed. Further, the chancellor found “that a stob was driven into the ground at the point measured by Mr. Gillenwater [grantor] in the company of Mr. Galyen [grantee and appellant] at the time of their conveyance and that the property to be conveyed was to the east of the stob.” This would exclude the 89 feet from appellants’ land. The court then held that the deeds to appellants and appellee should be reformed to conform to their intentions, their respective titles quieted and confirmed , in them, ordered appellants to remove the fence they had constructed upon appellee’s property, .and enjoined appellants from further encroachment upon appellee’s property. From that decree comes this appeal.

For reversal appellants contend that the findings of the chancellor are against the preponderance of the competent evidence. We do not agree.

In 1941 Ralph Gillenwater purchased, without benefit of a survey, and took possession of a rectangular tract of land 105 x 420 feet, which is approximately one acre. In 1964 he conveyed the back or east half of this property to appellants with a legal description that was based upon the deed he had acquired. In 1967 he conveyed to his brother, now deceased, and his wife, the appellee, the balance or the front half of this tract of land. Thereafter the appellants had their property surveyed according to the description in their deed. According to appellants’ survey, their boundary line would include 89 feet of the property which appellee claims. Appellants then constructed a chain link fence along this 105-foot boundary line which ran within a few feet of the back of appellee’s house and separated it from her outhouse and other outbuildings. This action precipitated the present litigation.

The testimony of Ralph Gillenwater, the common grantor to both parties, and the testimony of other witnesses clearly showed that the intention of the grantor was to sell the appellants only the back one-half (%) acre of this rectangular tract of land, and that appellants intended to buy only this one-half (%) acre which measured approximately 210 x 105 feet. According to appellee’s evidence, Mr. Gillenwater measured, in Mr. Galyen’s presence, the one-half (%) acre which was to be conveyed to the Galyens. This measurement would exclude the 89-foot disputed strip of land. This understanding was denied by Mr. Galyen who insisted he relied upon the metes and bounds description in the deed which he claims would include the 89-foot strip of land in dispute.

According to Mr. Galyen, a real estate agent, his purpose in purchasing this back half acre was to eliminate an unsanitary situation that existed from an open outhouse at the back of the house appellee now owns and, also, to clear underbrush from the property. It seems his barbecue pit was located nearby. However, it appears from the evidence that during the three years he owned his property before this litigation he made no effort to eliminate these conditions or construct a fence on the common boundary line he now claims. It was only after the property was sold to appellee and her husband that he had the property surveyed and then constructed the fence which separates appellee’s house from the outbuildings adjacent to her house.

In written findings the chancellor stated: “* * * It is also noted in the Gillenwater to Galyen deed that the same is a conveyance of one-half (%) acre, more or less, and states ‘it is intended by this conveyance to convey the East one-half of all property purchased in Deed Record 157 at page 57 or acquired by adverse possession under authority of such deed.’ ”

It is quite clear from the testimony and the exhibits that if the land .appellants purchased in 1964 included the disputed 89-foot strip, then the acreage would be considerably in excess of the one-half (%) acre conveyed in the deed. However, when this 89-foot strip is excluded, the appellants still own an area 210 x 105 feet or approximately one-half (%) acre. Mr. Galyen himself testified: “I thought I was buying the 210 x 105 approximately, approximately a half acre.”

Equity will reform a deed or other written instrument which results from a mutual mistake and does not express the true intentions of the parties, if the proof of such a mistake is clear, convincing .and decisive. American Alliance Ins. Co. v. Paul, 173 Ark 960, 294 S. W. 58 (1927); Arnett v. Lillard, 245 Ark. 939, 436 S. W. 2d 106 (1969). Upon a careful review of the testimony and exhibits presented in the case at bar, we agree with the chancellor that appellee has met this requirement. It is not necessary that appellee present evidence that is undisputed to establish a mutual mistake and the true intentions of the parties.

Appellants also argue that the chancellor erred in admitting testimony in contradiction of the recitals in their deed. This contention is without merit. Although parol evidence is ordinarily not permitted to contradict or alter the terms of a written instrument, it is well established that in an action to reform an instrument, parol evidence is admissible to show a mutual mistake or fraud and to establish the true intentions of the parties. Fisher v. Fisher, 237 Ark. 321, 372 S. W. 2d 612 (1963); Hervey v. College Of The Ozarks, 196 Ark. 481, 118 S. W. 2d 576 (1938); Hoyer v. Edwards, 182 Ark. 624, 32 S. W. 2d 812 (1930). In the latter case we said that a mutual “mistake may be proved by parol evidence only.” In Fisher v. Fisher, supra, it is said: “. . . It is settled that a court of eqxiity has power to correct mistakes in a deed and conform it to the intentions of the parties based upon parol evidence of a clear, decisive and unequivocal nature.”

In the case at bar we are of the view that there was competent evidence of a clear, cogent and decisive nature to sustain the chancellor’s findings.

Decree affirmed.