text:
    Bailey v. State.
    4866
    302 S. W. 2d 796
    Opinion delivered May 27, 1957.
    [Rehearing denied July 1, 1957]

      Thad I). Williams, for appellant.
    , Bruce Bennett, Atty. Gen’l.; Thorp Thomas, Asst. Atty. Gen’l., for appellee. •
   J. Seaborn Holt, Associate Justice.

Appellant, Luther Bailey, was convicted of the crime of rape and the death penalty was assessed, — § 41-3401 — 41-3402— 41-3403, Ark. Stats. 1947. From the judgment comes this appeal.

For . reversal appellant has assigned 31 alleged errors in his motion for a new trial.' The first three assignments question the sufficiency of the evidence. The prosecuting witness (a widow, 49 years of age, mother of two daughters and supervisor with the Independent Linen Company) testified that in the early morning (about 12:30 a.m.) of June 14, 1956, she was awakened by the barking of her neighbor’s dogs, heard noises in her house and got up to investigate. As she was going into the kitchen a man seized her, carried her into a bedroom where he forcibly and against her will, and holding a knife at her throat, had intercourse with her. There was actual penetration. Immediately following the first assault on her, he forced her to give him her purse, (later found in his car) containing about $190— cut the telephone wire — and while in her living room forcibly and against her will had intercourse with her again. He dropped his identification cards in her bedroom. He then left.

She immediately went to the home of a next door neighbor and reported what had happened. This neighbor, Mr. Pitts, testified that the prosecuting witness, at between 1:00 and 1:30 á.m. on June 14, “came hammering on my door . . . she was dressed in a gown and had a robe on and a pair of shoes . . . She was very upset . . . nervous and crying . . on her leg there was a bruise and on her throat scratches and cuts or some kind of lacerations and also her hands and arms were bruised.” He called the police and one of her daughters within five minutes ’ after she came in.He went with the police to her house, found it locked and entered by unlocking the back door. The light switch hád been turned off. They found a billfold with appel-: lant’s name on it on the floor of-her bedroom. A small window, in the pantry, some 6% feet from the ground* had been raised. There was a torn window screen on the ground. It had been on the window the day before. There was other evidence tending to corroborate the prosecuting witness. However, corroboration was not necessary to a conviction of rape. In Hodges v. State, 210 Ark. 672, 197 S. W. 2d 52, we said: “Headnote 1. Rape — Prosecuting Witnesses Need Not Be Corroborated. — In the prosecution of appellant on a charge of rape, it was not necessary that the testimony of the prosecuting witness be corroborated.” Also see McDonald v. State, 225 Ark. 38, 279 S. W. 2d 44.

Appellant admitted that he did have intercourse with the prosecuting witness, but stoutly insisted that she did not object but voluntarily submitted to him. This made a question of fact for the jury. We think there was ample substantial evidence to support the jury’s verdict. The jury is the sole judge of credibility of the witnesses and the weight to be given their testimony.

In Assignment 4, error is alleged because the court denied his motion to consolidate along with the charge of rape, the charges of robbery and burglary. The answer is that § 43-1010 Ark. Stats. 1947 provides specifically what offenses may be joined in any indictment, and no provision is made for the joining of rape, burglary and robbery.

In Assignment 5, appellant says the court erred in refusing to allow him to take an “oral deposition” of the prosecuting witness, relying on Act 335 of the Acts of 1953. We do not agree with this contention. We hold that Act 335 applies only to civil cases and that the legislature so intended. Reference is made repeatedly throughout the act to the “parties”, “a party”, or to any party — a defendant is not used. The applicable statute is § 43-2011 Ark. Stats. 1947 which provides: “Depositions/ — -The court, or judge in vacation, or a judge of the Supreme Court, may authorize a defendant to take the deposition of a material witness where there are reasonable grounds to apprehend that, before' the" trial, the witness will die or -.become mentally incapable of giving testimony, or physically incapable of attending the trial, or of becoming a nonresident of the state. The materiality of the testimony, and the reason for taking his deposition shall be shown by affidavit.” Here no showing by affidavit was made by appellant that the prosecutrix was about to die, would become mentally or physically incapable to testify, or was about to become a nonresident, or that she would not be available at the trial. Had the legislature intended Act 335 to apply to criminal cases (as well as civil) it could easily have so declared. Furthermore, the appellant, himself, introduced in evidence the statement that the prosecutrix made to Deputy Prosecuting Attorney Jernigan.

In Assignments 6 and 7 appellant contends “that the court erred in not allowing the Jury Commissioners, for the March term 1952 to the March term 1956 inclusive, to testify, as these Jury Commissioners would have testified to the matters, allegations and other things set out in Luther Bailey’s motion to quash the regular and special jury panels for the March 1956 term; that the court erred in overruling defendant’s motion to quash the regular panel and the special panel of the petit jury.”

Mr. Louis Rosteck, Deputy Clerk of the Circuit Court, testified in effect that his record shows that two negroes were selected by the jury commissioners for the March 1952 term, out of a total of 24. It is the general procedure of this court to select 24 jurors on the regular panel and 12 alternates. These two negroes actually served. There was one negro on the jury panel for the September 1952 term. There were two negroes selected for the March 1953 term. Five negroes served during the September 1953 term; three were on the extra panel and two on the regular panel. For the special panel five jurors were selected out of 21. There is nothing to indicate on the record whether they were white or colored. There were two negroes on the March 1954 term. There were 24 persons on the special panel; only five were selected. The record does not indicate whether the remainder were colored or white. Two negroes were selected on the panel for the September 1954 term. There was a special panel for that term of 100 names; seven persons were selected; they were all white. He did not know whether the remaining people on the list were colored or white. Three negroes served on the March 1955 regular panel. One person was used from the special panel of 100 names. Four negroes were included in the 100. Only one person out of 100 was used on the September 1955 special panel. There were three negroes on the regular panel. Three negroes were selected on the regular panel for the March 1956 term. The first special panel selected has 150 names on it; it does not indicate colored and white. The first 100 on this list were ordered to report this morning; 27 of them are here; none are negroes; . . . “Record of Poll Tax receipts issued in Pulaski County for the years 1954 and 1955.

Total number colored

(1954) 10,180 14.8% (1955) 8,557 13.3%

Total number white

(1954) 58,484 85.2% (1955) 55,980 86.7%”

We think the court did not err in refusing to allow the jury commissioners to testify. They had not been subpoenaed to appear as witnesses and were not present. Furthermore, after the court had denied his request that they be permitted to testify, appellant failed to show what the jury commissioners would have said had they testified. See Turner v. State, 224 Ark. 505, 275 S. W. 2d 24.

Appellant next argues that the above testimony of Louis Rosteck alone was sufficient to show racial discrimination. We do not agree. We think Rosteck’s testimony, — which speaks, for itself, — does not show an intentional and systematic limitation of negroes on the jury list. The rule appears to be well settled that an accused is not entitled to a jury composed in part of members who are of his race. Cassell v. Texas, 339 U. S. 282, 94 L. Ed. 839, 70 S. Ct. 629; Akins v. Texas, 325 U. S. 398, 89 L. Ed. 1692, 65 S. Ct. 1276. Neither was appellant entitled to proportionate representation, on the jury•.panels. “Fairness in selection has never been held' to require proportional representation of races upon a jury' . . . The mere fact of inequality in the number selected does not in itself show discrimination,” Smith v. State, 218 Ark. 725, 238 S. W. 2d 649. Also see Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667; Thomas v. Texas, 212 U. S. 278, 53 L. Ed. 512, 29 S. Ct. 393.

In Assignment 8, appellant contends, that the court erred in permitting witness Charles Pitts to testify as to the prosecutrix’s physical appearance when he admitted her to his home, on the night the crime was committed, at about 1:30 a.m. on June. 14. We have held contrary to this contention in Snetzer v. State, 170 Ark. 175, 279 S. W. 9, “Headnote 4. Rape- — -Evidence.— In a prosecution for assault with intent to rape, evidence that the prosecutrix had a scratch on her face the day after the alleged assault, and that her side was so badly hurt that she consulted a doctor three or four days later, was competent.”

In Assignments 9, 10, 11 and 15, appellant contends, in effect, that the court erred in allowing certain officers to testify as to a statement, or confession, made and signed by him. We do not agree. The record reflects that appellant made the statement freely, voluntarily and without threats, duress or any promise of leniency, and after being warned that it might be used against him. See Morris v. State, 197 Ark. 695, 123 S. W. 2d 513 and Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964. Furthermore, appellant' introduced his own statement in evidence in his defense.

In Assignments 12, 13, 14 and 16, appellant contends that the court erred in admitting'in evidence (a) a billfold belonging 'to appellant, found in the prosecutrix’s bedroom, (b) her purse found in appellant’s car and (c) certain photographs, showing’the bruises "on her body, as above indicated. • No error is shown here. The evidence reflects that appellant - admitted to two officers that the folder found in' the bedroom belonged to him. At the time of appellant’s arrest Officer Turner found prosecutrix?s purse in appellant’s car. Another officer testified that this purse was turned over to him by Officer Turner and was in substantially the same condition as when received. In Grays v. State, 219 Ark. 367, 242 S. W. 2d 701, where the facts were similar in effect to those presented here, we said: “The pocketbook was identified by the widow of the deceased as being his and, though some of the money had been taken out, the pocketbook had been in no way altered. It was competent to show a connection between the defendant and the murder.” As to the photographs in question, the prosecutrix and a physician testified that they accurately represented her injuries, showing the area and the condition of the bruises on her body. In Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17, we said: “The admission and relevancy of photographs must necessarily rest largely in the discretion of the trial judge. We find no abuse of discretion in the admission of photographs in the instant case. Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand, the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible.” See also Jones v. State, 213 Ark. 863, 213 S. W. 2d 974; Black v. State, 215 Ark. 618, 222 S. W. 2d 816; Smith v. State, 216 Ark. 1, 223 S. W. 2d 1011; Perkins v. State, 217 Ark. 252, 230 S. W. 2d 1.

In Assignments 17 and 18, appellant challenges the correctness of the court’s striking the testimony of Irene Wright. She testified that appellant lived close to her and that she had received 'several telephone calls for him from á person who identified herself as the prosecuting witness. She did not know the prosecutrix and was not sure that the voice was that of a white woman. We think this testimony' was properly excluded for the reason that the identity of the person who talked to the witness over the telephone was not satisfactorily identified. ‘ ‘ Generally, in order to introduce evidence of a telephone conversation or communication, otherwise unobjectionable, the identity of the person, who is claimed to have talked over the telephone, must first he satisfactorily established by the party seeking the introduction of the telephone conversation. To hold one responsible for statements and answers made over the telephone by unidentified persons would open the door for fraud and imposition,” 20 Am. Jur., Evidence, § 366, p. 334.

In the remaining assignments, 19 — 31, appellant contends that the court erred in giving certain instructions offered by the State and in refusing to give his requested instructions 1, 2, 3, 4, 5, 9, 12, 13, 14, 15 and 20. It appears that only a general objection was made by appellant to the court’s refusal to give all of his requested instructions above with the exception of Instruction 20 (to which refusal a specific objection was made), which was a requested instruction on the lesser offense of assault with intent to commit rape. As indicated, other than the specific objection to the court’s refusal to give his Instruction 20, only a general objection was made to the refusal to give the other instructions. It was appellant’s duty by specific objection to point out any vice in these instructions. This he failed to do. See Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650. We have examined these instructions to which appellant was content to make only a general objection and find no error in any of them.

We think there was no error in the court’s refusal to give appellant’s Instruction 20 on assault with intent to commit rape. The prosecutrix’s testimony tended to show that appellant was guilty of rape. The appellant admitted that he did have intercourse with her but testified that she did not object — hut consented. In these circumstances we think the court properly refused to instruct the jury on the lesser offense of assault to rape. We said in Whittaker v. State, 171 Ark. 762, 286 S. W. 937, “Moreover, there was no testimony to justify the court in giving an instruction allowing the jury to return a verdict for an assault with intent to commit rape. The testimony of the prosecutrix certainly tended to prove that the appellant was guilty of the crime of rape, and nothing less. On the other hand, the testimony of the appellant himself tended to prove that the appellant was not guilty of any offense. Therefore the court correctly instructed the jury that, under the testimony in the case, they should either find appellant guilty of the crime of rape as charged, or they should acquit him altogether.” See also Needham v. State, 215 Ark. 935, 224 S. W. 2d 785.

Affirmed.

(ORDER OF JULY 1, 1957)

Rehearing denied. Holt and Ward, JJ., upon reconsideration think the petition for rehearing in this case should be granted on the sole ground that the trial court erred in refusing to give the instruction, requested by appellant, on the lesser offense of an assault with intent to commit rape.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Parker v. Parker.
    5-1277
    302 S. W. 2d 533
    Opinion delivered May 27, 1957.
    [Rehearing denied June 24, 1957]

      D. D. Panieh, for appellant.

      Charles S. Harley, for appellee.
   Ed. F. McFaddin, Associate Justice.

The decisive question in this case is, whether a divorce decree rendered in open court is effective from the date it was-.actually rendered, or from the date the decree was en-, tered of record.

Iva Thornton Crawford sued S. R. Crawford for divorce in the Pulaski Chancery Court. The case was No. 102787; and on August 22, 1955 there was entered a decree in that cause which stated, inter alia:.

‘ On this 9th . day of August, 1955, came on for hearing the above styled cause, plaintiff appearing in person and by her solicitor, Thorp Thomas, and it appearing that due service of process by summons personally served ripon the defendant for the time and in the manner prescribed by law, issued on the complaint herein, has been had in this cause; and this action having been reached upon call of the calendar is submitted to the Court for its consideration and judgment upon' the complaint of the plaintiff’ the answer of the defendant, and the oral testimony of the plaintiff, and that of Mrs. Nell Cartwright and Mrs. Tom Wood in her behalf ; and the oral testimony of the defendant; from all of which, argument of counsel and other matters, things and proof before the Court, the Court doth find:

“That plaintiff and defendant were married on the 21st day of July, 1934 and that they lived together as husband and wife until September of 1954; that plaintiff had just cause for a dissolution of said bonds of matrimony, in that the defendant was guilty of such indignities as to render plaintiff’s condition in life intolerable ...

“It is therefore by the Court considered, adjudged and decreed that the bonds of matrimony existing between plaintiff and defendant be, and the same are hereby cancelled, set aside and held for naught;- that plaintiff’s maiden name.of Iva Thornton be, and hereby is restored.”

Prom the foregoing it will be observed that the cause was heard in open Court on August 9, 1955, and the decree announced although the decreé was not actually entered of record until August 22,' 1955. Such' time lag caused the present litigation: after the Court announced the divorce decree on August 9, 1955, the plaintiff, Iva Thornton, being advised by her attorney that she had a divorce, married Charles A. Parker on August 12, 1955.

■ On August 3, 1956 Charles A. Parker filed suit seeking a divorce from Iva Thornton Parker; and, although the complaint in that case is not before us, it seems that some question arose as to whether Iva Thornton Parker was a single woman on August 12, 1955 when she married Charles .Alton Parker. On November 20, 1956, the Pulaski Chancery Court, after due notice, directed that the Crawford v. Crawford decree, entered on August 22, 1955, be entered nunc pro tunc as of August 9, 1955. From such order Charles A. Parker, as appellant, brings this appeal, seeking to have vacated the nunc pro tunc order of November 20, 1956. Iva Parker is the appellee.

This case might be decided on either one of several points, but we rest our opinion on the holding that the divorce decree was effective on August 9, 1955, even though the decree was not actually entered of record until August 22, 1955. This is not a case in which the cause Avas taken under submission by the Court and decree rendered in vacation. In such an event the decree would be effective only from the date the decree was actually entered. See § 22-433 Ark. Stats.; Red Bud Realty Co. v. South, 145 Ark. 604, 224 S. W. 964; Jelks v. Jelks, 207 Ark. 475, 181 S. W. 2d 235; Cates v. Wunderlich, 210 Ark. 724, 197 S. W. 2d 482; and Meadows v. Costoff, 221 Ark. 273, 252 S. W. 2d 825. But this is a case in which the Court heard the testimony of the witnesses ore tenus and rendered the decree on August. 9, 1955; and the decree became effective on that date. In a long line of cases Ave have recognized that decrees rendered in open court are effective from the date' they are actually rendered, and not from the date of entry of record. Ex Parte Morton, 69 Ark. 48, 60 S. W. 307; American Mortgage Co. v. Williams, 103 Ark, 484, 145 S. W. 234; Chatfield v. Jarratt, 108 Ark. 523, 158 S. W. 146; American Investment Co. v. Hill, 173 Ark. 468, 292 S. W. 675; McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44. In the last cited case, we quoted from Hollabaugh v. Taylor, 134 Ark. 415, 204 S. W. 628: “A decree becomes effective from the date of its rendition and not from the date of its entry of record”. We also quoted in McConnell v. Bourland from 34 C. J. 44, saying as to a judgment: ‘ ‘ Upon its rendition, and without entry, a judgment is final, valid, and enforceable as between the parties, in the absence of any statute to the contrary, although for many purposes entry of judgment is also essential”. See also 19 C. J. 185 and 27 C. J. S. 834.

In the recent case of Norfleet v. Norfleet, 223 Ark. 751, 268 S. W. 2d 387, we held that under Act No. 555 of 1953 the time for appeal commences on the entry of the judgment; but we also recognized that the effective date of the judgment was from the day it was pronounced by the Court. We said:

“Here the decree was rendered on January 9, but it was not entered until some days later. The distinction lies in the fact that the rendition of a judgment is a judicial act on the part of the court, while the entry of a judgment is a ministerial act performed by the clerk. McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44.”

So, in the case at bar, the divorce decree was effective on the 9th day of August, 1955; and the Court was correct when, in its order of November 20, 1956, it in effect recognized that the divorce decree was valid from the date of rendition, i.e., August 9, 1955.

Affirmed.


author: Minor W. Millwee, Associate Justice.

text:
    Harmony Grove School Dist. No. 1 v. Camden School Dist. No. 35.
    5-1286
    302 S. W. 2d 281
    Opinion delivered May 27, 1957.

      J. S. Broohs and M. P. Matheney, for appellant.

      Gaughan, McClellan & Laney, for appellee.
   Minor W. Millwee, Associate Justice.

In 1944 the United States acquired a large body of land in Ouachita and Calhoun counties for the construction and operation of a naval ammunition manufacturing plant pursuant to the provisions of the Constitution of the United States, Art. 1, Sec. 8 Clause 17, and Ark. Stats., Sec. 10-1101. All the land lying in Ouachita County was within and a part of the appellant, Harmony Grove School District No. 1. For several years after acquisition of the land and operation of the munitions plant by the federal government some of the children in the area attended the schools of the Harmony Grove District while others attended the schools of appellee, Camden School District No. 35, pursuant to various orders of the appellant, Ouachita County Board of Education.

On June 21, 1955, the County Board of Education entered an order assigning all school children in the area in question to the Harmony Grove District and directed the proper officers to effect such assignment and allot all financial benefits of state aid and county apportionment to said district. The Camden District and 90 patrons appealed from the order on the grounds that it was illegal and contrary to the best interests of the children and patrons involved. The County Board of Education and Harmony Grove District intervened and answered in the Circuit Court where a jury was waived and the cause submitted for a determination of one question under a stipulation of the following facts pertinent thereto:

“That both the Camden District and the Harmony Grove District are regularly organized and existing common school districts, lying within the boundaries of Ouachita County, Arkansas.

“That on Dec. 6, 1944, the Federal Government acquired title to the area here in dispute, for construction and operation of a Naval Ammunition manufacturing plant. Prior to such acquisition, this area was a part of The Harmony Grove District, in Bradley Township, Ouachita County. The said Federal area does not touch the boundaries of The Camden District. After the Government’s acquisition, 150 or more children of school age have resided in the Area, formerly a part of The Harmony Grove District. Since its acquisition, the United States has continuously held title to the area in question as an integral part of the Naval Ammunition Depot, which has been engaged in the manufacture of munitions. ’ ’

The following question was submitted as the sole issue for decision under the stipulation: “Were the legal rights or jurisdiction of the Harmony Grove District, for school purposes, divested by the acquisition of the land within the geographical boundaries .of said district by the federal government in 1944, as to the territory thus acquired, and the formation by the government into a federal area now known as. the Naval Ammunition Depot Area?” The instant, appeal is from the judgment of the Circuit Court answering the posed question in the affirmative. Other findings in said judgment are not in issue here.

In support of the able trial court’s holding the appellees earnestly insist that the United States having acquired the area in 1944 with the consent of the state and having since maintained it as an arsenal, or munitions plant; it inescapably follows that the area is no longer a part of the Harmony Grove District which has since such acquisition been divested of all jurisdiction and legal rights for school purposes. We cannot accede to this view.

The legislatures of the respective states are required by constitutional provisions to provide a system of free public schools whereby all children may receive an education. 47 Am. Jur., Schools, Sec. 7. We are cited to no instance in which the federal government has assuined this most important duty and function traditionally exercised by the several states in those areas ceded to the government for military purposes. Nor are we cited to any authority directly in point on the exact question at issue. However there is authority for the proposition that the acquisition by the federal government of land situated within a school district for military purposes does not detach or remove such territory from the district, but it remains a part thereof, and the validity of the district is not thereby impaired. 78 C. J. S., Schools and School Districts, Sec. 30 (a).

In answer to the contention that a school district ceased to validly exist as to that portion of its territory acquired by the United States for military purposes in Hufford v. Herrold, 189 Iowa 853, 179 N. W. 53, the court said: “The acquisition by the United States government of a portion of the territory included within said district for military purposes, it is true, deprived the district of the right to levy and collect taxes therefrom, hut our attention is called to no statutory provision or other authority to the effect that such action changed the boundaries of said district, or took the land thus acquired by the government out of the territorial limits of the district ... If the United States government shall in the future restore the land taken to private ownership, it would doubtless be subject to the payment of taxes, the same as though the government had not acquired it for military purposes.”

In sustaining the validity of a state statute authorizing the state board of education to establish independent school districts upon U. S. military reservations located within the state, we find this statement by the Texas court in Central Education Agency v. Independent School Dist., 152 Texas 56, 254 S. W. 2d 357: “At the time the Federal government enlarged the area of the Fort Bliss Military Reservation, the added area was a part of various school districts in El Paso County, other than El Paso Independent School District. The taking over of this area by the Federal government did not remove such area from the respective school districts, nor did it serve to change the boundaries of these districts. It is true that the state and all of its subdivisions lost all power to tax or control the area and the property situated thereon, except as may be agreed upon by the State and Federal authorities. But for the two orders passed by the State Board of Education attaching and including such area to the El Paso Independent School District, the area would have remained in, and as a part of, those other school districts to which it belonged at the time of the taking over of such area by the Federal government.” That case also reflects the policy of the federal authorities to leave the education of children within the area of U. S. military reservations to state and local agencies charged with such duty and the disposition on the part of such authorities to cooperate with such ager.cies in the discharge of that duty.

In addition Congress has enacted several, statutes in recent years in recognition of federal responsibility for the impact which projects like this have- had on school construction needs in the affected area as well as other financial burdens placed on state and local educational agencies by reason of such acquisitions and operations. In providing federal financial assistance to the state and local school districts in these statutes Congress has fully recognized the authority and jurisdiction of such local agencies over the affected area for school purposes. The recognition of such authority in no manner interferes with the proper exercise of federal jurisdiction of the area for military or defense purposes. In carrying out the state’s constitutional duty to educate its children the local school district is not exercising any jurisdiction contrary to that of the United States in the operation of its arsenal. This does not mean that the federal government could not set up and operate schools in the area if it saw fit to do so. Thus it has been held that land ceded to the federal government and used by it for the operation of an Indian school is no longer a part of the local district in which it is situated. School Dist. No. 20 v. Steele, 46 S. D. 589, 195 N. W. 448. But the government is not engaged in the operation of a school here. Nor has Congress seen fit to exercise the discretionary power of “exclusive legislation” given it under the Constitution (Art. 1, Sec. 8, supra) over areas, acquired by the government for military purposes such as the one involved here.

We hold that the jurisdiction or legal rights of the Harmony Grove District for school purposes over the area in question were not divested by its acquisition by the United States in 1944; and that the posed question should be answered in the negative. The judgment is reversed and the cause remanded with directions to enter judgment accordingly.

       This section provides that Congress shall have power to exercise exclusive legislation over all places purchased by the United States, “by the consent of the legislature of the state in which the same shalí be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings . . .”

       By this statute the state consents to such purchases by the United States and cedes state jurisdiction over such properties to the United States with certain exceptions.

       “Intelligence and virtue being the safe-guards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction,” [Ark. Constitution, Art. 14, Sec. 1.]

         Public Law 815 enacted September 23, 1950; Public Law 874 enacted September 30, 1950; Public Law 248 of August 8, 1953; and Public Law 382 passed August 12, 1955.


author: George Rose Smith, J.

text:
    Lynch v. Cypert.
    5-1284
    302 S. W. 2d 284
    Opinion delivered May 27, 1957.

      John B. Driver and Virgil D. Willis, for appellant.

      N. J. Henley, for appellee.
   George Rose Smith, J.

An abandoned railroad right of way, 200 feet in width, lies between the appellant’s land on the north and the appellee’s land on the south. The appellant brought this action in ejectment to recover possession of the south half of the 200-foot strip. The complaint alleges that the entire strip was conveyed to the railroad company by one of the plaintiff’s predecessors in title, Mike Mathis, and that the entire strip therefore reverted to the plaintiff • when the railroad company removed its trackage in 1949. It is asserted that the defendant, whose land lies on the south side of the right of way, has wrongfully constructed a fence along the center line of the strip and taken possession of the south half thereof. The circuit court, sitting without a jury, rejected the plaintiff’s contention that the entire strip had reverted to him, and judgment was accordingly entered for the defendant.

In conveying the 200-foot strip to the railroad company Mathis executed two separate instruments. Thére is no controversy about the first instrument, which was executed in 1902. That deed conveyed a 100-foot easement across a forty-acre tract “for the actual construction, use, maintenance and operation of said railroad.”

The case turns upon the correct interpretation of the second instrument, which Mathis executed in 1903. This conveyance is in form a warranty deed, with the usual granting clause, habendum, and covenant of warranty. It conveys “the following land lying in Searcy County, Arkansas, to-wit: 50 feet on either side of the 100 feet of right of way heretofore deed[ed] to said St. Louis & N. Ark. Ey. Co. for depot grounds between stations 5074 and 5095,” etc. It is stipulated that Mathis owned no land south of the 200-foot right of way, the southern boundary of that strip being also the southern boundary of his forty-acre tract. The trial court held that the second deed conveyed the fee simple title to the fifty feet lying on each side of the original easement and that therefore there had been no reversion to the appellant, since his land borders on a strip that the railroad company owned in fee. The court concluded that the appellant had not proved his own title and so could not prevail in ejectment.

We agree with the trial court’s view. If the words “for depot grounds” had not been inserted in Mathis’ second deed the instrument would undoubtedly have conveyed the fee simple, and there would be no plausible basis for the contention that some lesser estate was intended. Hence the appellant’s argument boils down to the assertion that the grantor’s reference to depot grounds (together with the fact that a nominal consideration of one dollar was recited) overrides all the rest of the instrument and keeps it from being an absolute conveyance.

At the outset it will be observed that the pivotal words, “for depot grounds,” seem by their position in the deed to refer to the 100-foot easement already granted and not to the additional land being conveyed by the second instrument. No attempt was made to clarify this ambiguity by proof of the use that has actually been made of the 200-foot strip. On this record we are left in doubt about what land the parties expected the railroad company to use for depot grounds.

If it be assumed, however, that the reference was to the outer areas along the original easement, there is still no persuasive reason for saying that the words “for depot grounds” change the legal effect of the instrumeat. The appellant, citing Daugherty v. Helena & Northwestern Ry., 221 Ark. 101, 252 S. W. 2d 546, intimates that a mere easement for depot purposes was meant. The instrument construed in the Daugherty case did not purport to be a warranty deed and differed in many, respects from that now before us. That deed was ' expressly “for a right of way,” which brings to mind the thought of an easement, while a depot site suggests a more extensive use of the land. In the only case that seems to be directly in point, Texas & P. Ry. Co. v. Martin, 123 Tex. 383, 71 S. W. 2d 867, a warranty deed to a railway company contained two recitals that the land was to be used for depot purposes. The court held that the deed was nevertheless a fee-simple conveyance.

Nor can it well be said that Mathis’s second deed created a defeasible fee in the grantee. The language of the instrument is not that ordinarily employed to describe such an estate. Davis v. St. Joe School Dist., 225 Ark. 700, 284 S. W. 2d 635. And as a general rule a bare recital of- the purpose for which the land is conveyed is not enough to justify a finding -that a determinable fee or fee on condition subsequent was intended. Powell on Real Property, § 187; Fitzgerald v. Modoc County, 164 Calif. 493, 129 P. 794; Fuchs v. Reorganized School Dist. No. 2, (Mo.) 251 S. W. 2d 677.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Halperin v. Hot Springs Street Railway Company.
    5-1272
    302 S. W. 2d 535
    Opinion delivered May 27, 1957.

      Richard W. Hobbs and B. W. Thomas, for appellant.

      House, Holmes, Roddy, Butter & Jewell and Charles J. Lincoln, for appellee.
   Paul Ward, Associate Justice.

On April 5, 1955 appellant, Tillie Halperin, a woman 61 years of age, was injured as sbe was trying to aligbt from a bus owned by appellee, Hot Springs Street Railway Company, and operated by one of its employees, after tbe bus bad stopped on Central Avenue in front of tbe Arlington Hotel in Hot Springs.

On April 11, 1955 appellant filed her complaint for damages against the Railway Company, charging the company with negligence in the following particulars: The driver of the bus “negligently and carelessly failed to pull the bus into the designated bus stop, negligently failed and omitted to give the plaintiff due and timely warning or any warning at all of the dangerous condition of the street;” That the driver of said bus came to a stop “approximately 3 feet from the curb and approximately 13 feet from the regular designated bus stop, and that there was a deep hole in the pavement immediately in front of the rear door where the passengers alight;” That the driver of said bus saw, or should have seen, that if he opened the door to permit passengers to alight at the point where he did stop the passengers would be in danger of falling into said hole in the street and that it was not a safe place to stop the bus for discharging passengers, and; Her injury was a direct result of appellee’s negligence as set out above. To the above complaint appellee entered a general denial and later, by amendment, pleaded contributory negligence on the part of appellant.

At the close of appellant’s testimony the trial court, on motion, instructed the jury to return a verdict in favor of the Railway Company. This action by the trial judge apparently (judging from his remarks to the attorneys) was based on the grounds that the testimony showed no negligence on the part of the Railway Company or its employee but did show contributory negligence on the part of appellant.

We think the court was in error. While the record is somewhat voluminous, the facts essential to this opinion are relatively few and, for the most part, undisputed.

Appellant was at the time of the accident, and for several months previously, had been working for Doctor McWorter in the Medical Arts Building which is located on Central Avenue, just across the street from the Arlington Hotel. She rode to work each morning on a bus belonging to the appellee company. On many such occasions she alighted from the bus at the same place where it was supposed to have stopped at the time of the accident. On the day of the accident, April 5, 1955, appellant had eaten lunch on Central Avenue some considerable distance south of the Arlington Hotel. After lunch she boarded the bus in question to return to her place of employment. "When the bus stopped in front of the Arlington Hotel she was injured while attempting to alight. The following facts are undisputed: The bus did not stop where it was supposed to stop, but did stop some distance (alleged to be 13 feet) to the south. When the bus came to a stop it was some 2 or 3 feet from the curb, and just in front of the rear door (which appellant used in departing) was a storm sewer opening in the curbing. This opening was 4 or 5 feet in length and apparently 8 or 10 inches high. Starting back in the street about 26 inches from the opening the street sloped gently to the opening. Several pictures of the opening'and the ádjacent portion of the street and curb are in the record.

Since no one who testified was in a position to know the details' of just how the accident happened except appellant, it is important, and we shall attempt, to set out her material testimony in detail. She stated: When the bus stopped I “got up and walked toward the rear door of the bus . . . ” “I held on to the rail, I guess you call it a rail, inside the bus — -there is a seat on the side, seel I held on to that rail with my right hand and stepped down with my right foot on the bus step; and I didn’t see the drain because in glancing the way I was standing the view was obscured, and I just gripped on to the door before I started to step, and when I had hold of the door and started to step is when I realized what I was getting into. I realized that the hole was there and I gripped frantically to the door with my right hand, trying to pull my foot back, and by that time it had hit the pavement, down in the drain, the incline, you know. And I was trying to get my foot- back; and in some manner I must have pulled my foot back enough and I felt my hand give way and I fell to the — gutter, with my left foot kind of up under my right leg ...” “I grabbed onto the door with my right hand, to keep from going into that drain. ’ ’ I don’t think the bus was more than 2 feet from the curb. I was pretty close to it and my foot was going into the drain. “Well, I figure I would have gone into the hole with my left foot if I hadn’t started pulling myself back and tried to keep out of it. ” “. . . it happened so suddenly that I really — for a second there I didn’t know when I fell, when my hand gave way and I fell, then I was kind of stunned.” When I fell my left foot was under my right leg and “my right leg was stretched out over the drain.” “Well, it all happened so quickly. I looked when I got hold so I could support myself in stepping down but I was stepping practically at the same time and I didn’t see the hole and didn’t expect it there.”

Viewed under the applicable rules, we think the above testimony presented a question for the jury. As stated in Missouri Pacific Transportation Company v. Robinson, 191 Ark. 428, 86 S. W. 2d 913, and other cases, ordinarily negligence and contributory negligence are questions for the jury. Our decisions also are uniform in holding that, where a verdict is directed in favor of a party, the testimony will be given its strongest probative force for the party against whom it is directed. In the Robinson case cited above, it was said, at page 432 of the Arkansas Reports, “The law imposes the highest degree of skill and care upon common carriers consistent with the practical operation of their cars to furnish their passengers a safe place to get on and off.”

Appellee attempts to justify the action of the trial court on the ground that the testimony shows appellant was guilty, as a matter of law, of contributory negligence, but such contention cannot be sustained.

It is true that appellant apparently could have seen the opening in the curb if she had looked for it, but she had alighted at the same bus stop (at the proper place) .many times before and, of course, knew there was no such hazard as an opening in the curb. Her testimony on this point was: Q. “Let me interrupt Mrs. Halperin.. You stated you had stepped off the bus a good many times before. You mean the regular bus stop?” A. “At the regular bus stop, yes.”

It cannot be said, as a matter of law, that appellant’s injury was caused solely by her negligence in letting go of the railing. It might be that she acted as she did because of the situation of peril in which she unexpectedly found herself — as a result of the bus failing to stop at the proper place. All these situations raised questions which, we think, presented themselves to a jury, as before stated. Consequently the cause must be reversed for further proceedings.

Several questions concerning the admissibility of evidence are discussed in the briefs. By stipulation, appellant took the deposition of Modine Grisham with appellee’s attorney present. On cross examination, appellee’s attorney asked several questions which (in most instances) called for answers based on conclusions or hearsay. In some instances the trial court refused to admit the answers. We think this was error. The rule is, as stated in Professor Conrod’s work on Modern Trial Evidence, Yol. 2 at page 371, “A party litigant cannot object to evidence which he himself has solicited.” Appellee recognizes this rule but thinks it does not apply to discovery depositions. It is unnecessary for us to decide whether the rule does or does not so apply because a discovery deposition is not involved here. We feel that the above comments will prevent any further disagreements over the admissibility of similar testimony.

Therefore the cause is reversed for further proceedings consistent with this opinion.


author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice

text:
    Trailmobile v. Robinson.
    5-1207
    302 S. W. 2d 786
    Opinion delivered June 3, 1957.
    [Rehearing denied July 1, 1957]

      Lovell <& Evans and Darrell D. Dover, for appellant.

      Crouch & Jones, Bussell Elrod, Wade McAllister, and DeLoss McKnight, for appellee.
   Carleton Harris, Chief Justice.

John Norman, a sales representative for Trailmobile, Inc., appellant herein, called upon Joe Robinson, appellee herein, who is engaged in the wholesale produce and trucking business in Springdale, Arkansas, for the purpose of soliciting an order for refrigerated trailers. Robinson was sufficiently interested in two used refrigerated trailers .held by the company in Kansas City, and priced at $12,500 each, to go with Norman to Kansas City to examine them. On the return trip, appellee offered to purchase these refrigerated trailers for $23,800, and the following morning, after contacting company officials, Norman presented appellee with a sales order dated June 8, 1955, for two used 1955 CID 8512 Trailmobile Trailers with Thermo-Kings. On the next day, appellee executed his promissory note to appellant in the sum of $23,731.22, said note being secured by a chattel mortgage on the equipment purchased. This note was payable in thirty-five equal successive monthly installments in the amount of $659 each, (final payment to be $666.22), commencing on July 10, 1955. The note provided for interest after maturity at the highest lawful rate, together with reasonable attorney’s fees. It further provided that upon failure to pay any installment when due, all remaining installments should, at the option of the holder, become immediately due and payable. The chattel .mortgage, of even date, securing the note, described the equipment as follows: . .

Manufac- Other Name of turer’s Type & Description of Identifica - Mannfactnrer Serial No. Model Body_Year tion_

Trailmobile 1-00972. C-8512 Insulated Van 1955 Shiftable Tandem ThermoKing TK-5192

Trailmobile 1-00973 C-8512 Insulated Van 1955 Shiftable Tandem ThermoKing TK-8232

The two trailers were delivered to appellee, one being equipped with a 1955 model Thermo-King refrigeration unit, and the other with a 1952 model Thermo-King refrigeration unit. The invoice showed the price of the trailers as $11,900 each. About three weeks after the purchase, the 1952 model Thermo-King unit “broke down”, and had to he repaired. A representative of Thermo-King sent a message to Robinson inquiring if he (appellee) knew that he had an “old model ThermoKing on that new trailer.” Appellee, who had, a short time previously, sent a check to appellant as his first payment on the note, stopped payment on the check. No adjustment was made, and no further payment was made, and on the due date of the second payment, appellant filed suit on the note alleging it had elected to accelerate the entire balance of the note, seeking judgment for $23,731.22, together with 10% interest from July 10, 1955, and 10% of said sum as attorney’s fees. An order of attachment for the property was sought and prayer was that the sheriff of Washington County hold the vehicles subject to the outcome of the action; that said vehicles he sold to satisfy the judgment, and “the plaintiff herein have judgment for any deficiency between the sale price of the said vehicles and the cost of this action and the amount of said judgment against the defendant herein. * * *” Bond for specific attachment in the sum of $50,000 was made. Appellee filed a corporate surety bond in the sum of $23,731.22, plus interest thereon from July 10, 1955, at the rate of 10% per annum, and the costs of the action, conditioned that Robinson “shall perform the judgment of the court in this action.” Robinson filed a general denial and a counterclaim alleging a breach of warranty, and asking for judgment for $4,000. An amendment was filed to the counterclaim and later an amended and substituted counterclaim was filed. After the filing of additional pleadings by appellant, the cause was set for trial for March 16, 1956. On March 15, appellee filed an amendment to his Amended and Substituted Counterclaim. The gist of appellee’s contentions, as set forth in the pleadings, was that he did not receive the kind of Thermo-Kings that he was supposed to receive under the contract; that he was due two used 1955 models, but instead, received one 1955 model and one 1952 model; that the 1952 model was defective and unfit for the purpose for which it was purchased; that appellant refused to make any adjustment, and had breached the contract. The following day, appellant filed its motion to strike said amendment from the pleadings. The court declined to do so, and the cause proceeded to trial. At the conclusion of the evidence, the jury returned a verdict for appellant in the amount of $20,931.22, plus interest from July 10, 1955. Subsequent thereto, appellee filed motion for Judgment Notwithstanding Verdict, setting up that the jury, in finding that appellee was entitled to a credit in the amount of $2,800, actually found that appellee was not in default at the time of the filing of the suit and issuance of attachment, and that a proper instruction and form of verdict would have given the jury an opportunity to specifically find that appellee was not in default of the note sued upon, and that appellant accordingly was not entitled to accelerate the indebtedness. Appellant filed its response to the motion setting up that it should be overruled in all particulars, and on April 19, 1956, the court entered the following judgment in compliance with the motion:

“On this the 16th day of March, 1956, this cause comes on to be heard. The plaintiff appearing in person and by attorneys and the defendant appearing in person and by attorneys; whereupon, both parties announced ready for trial.

“A jury composed of Bob Stout and eleven others of the regular panel of petit jurors of this court was selected and impaneled and sworn according to law to try the issues of fact arising in this case; and after hearing all the evidence introduced; the instruction of the Court and the argument of counsel, the said jury retired to consider its verdict; and after deliberating thereon, returned into Court the following verdict:

‘We .the jury find for plaintiff and fix his amount of recovery against the defendant at sum of $20,931.22 plus interest from July 10, 1955.

(Amount of recovery not to exceed $23,731.22 and not) (to be less than $20,931.22).

(s) Bob Stout Foreman’

“whereupon defendant, Joe Robinson, filed Motion for Judgment notwithstanding Verdict on March 28, 1956, to which Motion plaintiff Trailmobile, filed Response dated April 5, 1956. The Court, having taken the Motion For Judgment and Response under advisement, finds as follows:

“1. That plaintiff, Trailmobile, filed writ of attachment and posted surety bond at commencement of suit, August 10, 1955, to recover $23,731.22 principal and interest on note.

“2. That plaintiff, Joe Robinson posted surety bond in the sum of $23,731.22, signed by The Employer’s Liability Assurance Cor. Ltd. dated August 11,1955, guaranteeing to pay any judgment of the Court and that posting of said surety bond constituted tender and that Joe Robinson was not in default at time of filing of suit or at any time during pendency of this suit.

“3. That Joe Robinson filed counterclaim for $4,-000 and that the jury found defendant, Joe Robinson, was entitled to $2,800 set off against claim of plaintiff.

“4. That Joe Robinson has tendered into Court j on March 20, 1956, and April 10, 1956, the sum of $3,-790, as balance of principal and $85.13 interest on payments due on July 10, August 10, September 10, October 10, November 10 and December 10, 1955, and January 10, February 10, March 10 and April 10, 1956.

“5. That plaintiff is entitled to judgment against defendant for payments from July 10, 1955 to April 10, 1956, same being a total of $6,590, less $2,800 set-off leaving a balance of $3,790, principal, and $85.13 interest.

“IT IS, THEREFORE, ORDERED AND ADJUDGED, that Trailmobile, Inc., do have and recover of and from Joe Robinson, the sum of $3,790 and $85.13 interest, which sums having been tendered into Court are ordered paid to plaintiff by the Clerk of this Court and that the said judgment in the sum of $3,875.13 is thereupon satisfied in full.

“Judgment prepared and entered this 19th day of April, 1956.

(s) Maupin Cummings

Circuit Judge”

From said judgment, appellant brings this appeal, basing its contention for reversal on several alleged errors, which we shall proceed to discuss.

It is first contended that the court erred in refusing to grant appellant’s motion to strike the Amendment to the Amended and Substituted Counterclaim. As this Court has many times said, the matter of permitting amendments to pleadings is one that lies largely within the province of the trial court. Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S. W. 2d 773. Nor does it appear that the issues were drastically changed by the amendment. No motion for continuance was filed by appellant, and we conclude that the court did not abuse its discretion in permitting the filing of the amendment.

It is next contended that the court erred in permitting parol evidence to explain the sales order signed by appellee. Appellant contends that the admission of such oral evidence enabled appellee to vary the terms of the agreement; that the agreement was not ambiguous, and accordingly, the admission of such testimony was error. The sales order described the property to be sold as “2-Used 1955 CID 8512 Trailmobile Trailers with Thermo-Kings (Nos. R-42-76 and R-42-77)”, and the chattel mortgage made further identification (as heretofore set out in stating the case). The trial court held that these instruments did not clearly identify the property (Thermo-Kings) to be purchased, and that parol evidence was thereby admissible. We agree that the contract is ambiguous. A mere reading of the instruments does not make clear as to whether the parties contracted for two used 1955 trailers and two 1955 Thermo-Kings or whether the contract called for two used 1955 trailers with Thermo-Kings of any year model. Parol evidence was therefore admissible. In Lutterloh v. Patterson, 211 Ark. 814, 202 S. W. 2d 767, Mr. Justice Robins, in speaking for the court, said: “Therefore the lower court should have admitted the testimony as to the circumstances surrounding the execution of the contract and as to the construction the parties themselves, by their words and actions, put upon it; and should have permitted the jury, upon a consideration of all the competent testimony, to say what was intended by this uncertain language.” The above finding makes unnecessary any discussion of the third point, which is that the court erred in refusing to direct a verdict for appellant in the amount sued for.

It is next contended that the court erred by giving a binding instruction to the jury, and in defining the law relative to parol evidence. In paragraph four of its instructions, the court stated: “It is the contention of the defendant in his counterclaim that the contract entered into between the parties, which contract is admitted, calls for the delivery of two pieces of used equipment, namely two Trailmobile trailers with ThermoKings attached, 1955 model.” . Appellant argues that by telling tbe jury tbe contract was admitted, tbe court bound the jury to find that said contract called for 1955 Thermo-Kings. We do not agree with this interpretation. The execution of the contract was admitted by both parties, and the instruction makes clear that it is only the contention of appellee that the contract called for 1955 model Thermo-Kings. Appellant contends that other paragraphs of the court’s instructions bind the jury, but we have examined each contention, and find no merit in them, nor can we agree that the court erroneously defined the law relative to parol evidence. This brings us to a discussion of appellant’s strongest contentions.

It is asserted that the court erred in granting a judgment notwithstanding the verdict, and further, the judgment entered is erroneous because the redelivery bond given by the appellee to the sheriff was not a tender of the amount due, and appellee was in default at the time the action was filed. We will discuss first the sufficiency of the tender.

Appellant vigorously argues that the redelivery bond filed by appellee did not constitute a valid tender, contending that a “tender” is an unconditional offer of payment, consisting in the actual production, in current coin of the realm, of a sum not less than the amount due on a specific debt or obligation. We deem it well to quote from Yol. 12, Am. Jur., Sec. 334, p. 891:

“It may be pointed out that some misapprehension or confusion appears to have arisen from the mode of expression of a tender or offer by the parties, as applicable to the case of mutual and concurrent promises. The word “tender” as used in such a connection does not mean the same kind of offer as when it is used in reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it, nothing further remains to be done, and the transaction is completed and ended ; but it means only a readiness and! willingness accompanied with an ability on the part' óf one of the parties' to do the acts which the agreement requires him to perform, provided the other will concurrently do. the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability, and notice are sufficient evidence of, and indeed imply, an offer or tender in the sense in which those terms are used in reference to mutual and concurrent agreements. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is, in its nature, conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement. * * # J >

In the instant litigation, appellee contended- that appellant had not performed its contract (in that he (appellee) received a 1952 Thermo-King instead of a 1955 model), and testified that appellant was unwilling to make an adjustment. It would- indeed be unfair to require one to make tender of a specific amount of money claimed by another, when the first party did not receive the specific property that he originally purchased. Appellee was entitled to show that appellant had breached its contract before tendering a money payment. The jury, by its verdict, found that appellant had breached the contract, and the execution of the redelivery bond showed a. “ * * * readiness and willingness accompanied with an ability * * *,” to do that required of him, provided appellant would do that which it was required to do under the contract.

It is urged that the court committed reversible error in entering the judgment non obstante veredicto. Though it is called a “judgment notwithstanding verdict”, actually, the action of the court amounted only to correcting or amending the verdict to conform to the findings of the jury. Let it be remembered that the entire litigation hinged upon the question as to whether appellee was. to receive two 1955 model ThermoKings under his contract. The verdict rendered by the jury was, of course, entirely contradictory, for pn the oiie hand, they found that appellee’s contention was correct, and that he was entitled to judgment on his counter-, claim for $2,800. This had the effect of finding that, appellee was' not in default, since the amount of his recovery was greater than the amount due appellant at the time of the filing of the suit. On the other hand, the verdict found the entire indebtedness due appellant (less the $2,800) to be due and payable. Appellant, of course, was not entitled to accelerate the indebtedness except that appellee be in default. This was a complete inconsistency. In finding for appellee on his counterclaim, the jury could not properly or legally accelerate the indebtedness. The question of amendment of the verdict was discussed in the case of Woodruff v. Webb, 32 Ark. 612. Under Headnote 3 Ave find:

“VERDICT: Amendment of. Where the intention of the jury to return a verdict responsible to the issue is manifest, but under a mistake of law, and not of any fact in the case, their intention is incorrectly expressed, it is the duty of the court below to have the verdict reduced to, and entered in proper form. '* * *”

From the language of Justice Harrison:

“ * * * The obvious intention of the jury was to find for the plaintiff, the amount of the principal and interest of the note; but under a misapprehension as to the rate of interest it bore after maturity, and which was a mistake as to law, and not as to the facts of the case, their intention was incorrectly expressed. # * * ” Justice Harrison then quoted from cases from other jurisdictions as follows:

“* * * It needs only to be understood what the intent of the jury was, agreeably to which, the verdict may afterwards be molded into form. * * *”

Again:

“* * * The courts are competent to collect the meaning of the jury from the terms of their verdict, * '* * the general rule is that, although the verdict may not conclude formally or punctually in the words of the issue, yet, if the point in issue can be concluded out of the finding, the court shall work the verdict into form, and make it' Serve' according to1 the justice of the case'.”

To the same effect is the holding in Colky v. Metropolitan Life Insurance Company, 320 Ill. App. 120, 49 N. E. 2d 830. As stated in Vol. 89, Corpus Juris Secundum, 198:

“While the court has no power to look into the evidence and revise or amend the verdict as to a finding of fact, or in any manner to invade the province of the jury hy substituting or adding the conclusion or verdict of the court as to a substantial or material matter, there are numerous cases to the effect that the court has the power to put a manifestly irregular or defective verdict in such form as to make it conform to the intention of the jury, and carry their findings into effect, where the intention can be ascertained with certainty, * *

We therefore conclude that the action of the trial court was proper.

Since the jury, by its verdict, found that appellant had breached its contract, and since the amount awarded appellee was greater than any sum due appellant at the time of institution of the suit, it must accordingly be held that appellee was not in default. Since he was not in default, appellant is not entitled to attorney’s fees.

The judgment of the trial court is, in all things, affirmed.

Justice McFaddin dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). While I think that the Circuit Court judgment, as finally entered, probably accomplished substantial justice, nevertheless I am compelled to dissent, because:

1. I think it was error to admit oral evidence concerning the written contract.

2. I am convinced that the bond filed by Robinson was not such a tender as the law requires in tender cases.

3. I am also convinced that the judgment entered by the Court should not have been entered. It is not a" judgment'non obstante veredicto, but is a judgment construing what the Trial Judge thought the jury intended ■ to-.accomplish. It is my view that the- most' the. Trial Court could have done was to set aside the verdict and grant a new trial: the Judge could not enter a judgment of his own in the place of a judgment on the jury verdict.


author: J. Seaborn Holt, Associate Justice.

text:
    Comer v. Pierce.
    5-1285
    302 S. W. 2d 547
    Opinion delivered June 3, 1957.

      Fred M. Pickens, Jr., and John D. Eldridge, for appellant.

      Forrest E. Long and Lloyd Henry, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a Workmen’s Compensation Case; — § 81-1301 — 81-1349, Ark. Stats. 1947.

Appellee, Pierce, filed his claim with the Workmen’s Compensation Commission for an award of compensation for injuries he received on August 27, 1954, while in the employ' of appellant, Comer, at a lumber mill and during the. course of such employment. May 18, 1955, a hearing before a single commissioner resulted in a finding in appellee’s favor, and on appeal to the full commission, the findings of the single commissioner were affirmed. Thereafter, on October 8, 1956, the Circuit Court affirmed the action of the Commission. This appeal followed.

It appears that no determination of the amount of compensation due appellee has yet been made, and only two jurisdictional questions are presented for our determination. 1. Was appellant, Comer, at the time appellee was injured, regularly employing five or more persons in the operation of his lumber mill as contemplated by § 81-1302 (c) Ark. Stats. 1947, and; 2. Was appellee, at the time of his injury, engaged in “agricultural farm labor” as that term is defined in § 81-1302 (c)t

Section 81-1302 (c) Ark. Stats. 1947 provides: “Employment means every employment carried on in the State in which five (5) or more employees are regularly employed in the same business or establishment, except . . . agricultural farm labor, . . .” After a careful review of the evidence, we think the following is, in effect, a fair summation thereof by the Commission: “Respondent is engaged in operating two or three large farms in Woodruff County, Arkansas. In 1954 he was engaged in the process of clearing the timber from some of his lands so that he might use it for planting rice. For a time respondent (appellant) cleared the land and sold the cut timber as it was. He then determined that he could make more- money if he obtained a sawmill and cut the timber into lumber and sold the lumber. Respondent purchased a sawmill and began operating in the summer of 1954.

“In the operation of this mill respondent had some employees who worked at the mill and did not work on the farm, and there were other employees who at times worked on the farm and at other times worked at the mill. In the operation of this mill a large majority of the time more than five employees were employed to work at the mill. As a matter of fact, it appears that for a full crew it took about eight or ten men to operate the mill. The record in this case is clear that more than five employees were employed at the sawmill on August 27, 1954, on which date claimant suffered an accidental injury that arose out of and during the course of his employment while he was operating a tractor moving logs at the skidway at the mill. The tractor turned over onto the claimant and he was injured.

‘ ‘ Claimant was employed by respondent to do whatever work respondent deemed necessary and part of the time claimant was employed in doing work about the farm; that is, he fixed fences, operated a tractor and did a considerable part of the planting. Claimant was then directed by the employer to work at the sawmill, where he had been working for several days prior to the time of his injury on August 27, 1954.

“Respondent advertised in the McCrory newspaper during the period from about August 19, 1954 until about March 24, 1955 rough lumber for sale at $55 per thousand and dressed lumber for $65 per thousand at the mill. Respondent did sell lumber to the general public, and it is his testimony that he used some of the lumber on his farms. Respondent also did custom sawing; that is, he sawed logs which belonged to other persons into lumber and charged these persons on the basis of so much per thousand feet of lumber. At the time of the hearing of this case on May 18, 1955 it was respondent’s testimony that he had on hand between 375 and 400 thousand feet of lumber which he had sawed in his mill and which he would be willing to sell.”

On these findings of facts, the Commission concluded that “respondent (appellant) was not engaged in agricultural farm labor in the operation of his sawmill and that he had five or more employees employed in his mill at the time the claimant was injured, as well as prior and subsequently thereto . . . that the parties to this cause come within and are bound by the provisions of the. Arkansas Workmen’s Compensation Law and this Commission has jurisdiction over this claim.”

Under our settled rule the findings of fact by the Commission are on appeal given the same verity that would attach to a jury’s verdict and will be sustained if supported by any substantial evidence. See Williams v. Gifford-Hill & Co., 227 Ark. 340, 298 S. W. 2d 323, 326 and Sherwin-Williams Co. v. Yeager, 219 Ark. 20, 239 S. W. 2d 1019. In determining the sufficiency of evidence doubts should be resolved in favor of claimant and the evidence should be reasonably and liberally construed in his favor. See Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252.

We think there was ample substantial evidence to support the Commission’s findings that appellant Comer had in his employ, at the time of Pierce’s injury, five or more employees working at his mill and that appellant was not engaged in agricultural farm labor in the operation of his sawmill in the circumstances here. In effect, Allen McCain, the mill manager, testified, that the mill had been in operation since June 1954 and that from about July 9, 1954, the mill was never operated with less than five men, that it ran steadily from June 18, 1954, five days a week most of the time. There was other testimony tending to corroborate McCain. It thus appears that five or more men had been regularly employed at the mill for a month or more prior to August 27, when Pierce was injured.

We also agree with the Commission’s finding that at the time Pierce was injured appellant was not engaged in agricultural farm labor. In one of our earliest cases, in construing our Workmen’s Compensation Act, we said: “These Compensation Acts are entitled to and have universally received a liberal construction from the courts. The humanitarian objects of such laws should not, in the administration thereof, be defeated by overemphasis on technicalities — by putting form above substance.” Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380.

As indicated, appellant Comer, in addition to' his farm operations, was engaged in the saw mill business on his farm, to an extent far beyond supplying luihber for Ms own needs. He soM lumber to the general public, and did custom sawing for certain parties upon request. His employees worked some eight to ten hours a day at the mill, when it was in operation, and the mill ran some 8,000 to 10,000 feet daily and there was, according to witness McCain, at this mill site upwards of 378,000 feet of lumber. Clearly, we think Pierce was not engaged in farm labor at the time of his injury. In an Oregon case, — Farrin v. State Industrial Acci. Commission (1922), 104 Or. 452, 205 Pac. 984, — the facts showed that a sawmill was owned by a farmer and operated by him on his own farm. The Oregon Supreme Court, in holding that coverage of an injury to an employee, under the Workmen’s Compensation Act, was not barred under a provision in the act excluding {‘ farming and all work incidental thereto”, used the following reasoning, which we think is sound and applicable here: “Every workman employed in a sawmill is engaged in a hazardous employment, whether that sawmill is owned and operated by a farmer upon Ms farm, or by some capitalist upon a city block. The location, the ownership, or the size of the mill has not one thing to do with the matter of his coming within the provisions of the Workmen’s Compensation Law. The Workmen’s Compensation Law was created for the protection of all hazardous occupations therein enumerated, regardless of their extent, and for all workers in such occupations, however, brief their employment. If sawmills owned and operated by farmers are to be excluded from coming under the act automatically, such exclusion must be by legislative enactment, and not by construction. ’ ’

As indicated, the evidence seems clear to us that appellant in operating the sawmill in question here was doing so not only to assist him in clearing operations of his land, but for profit. In fact, he admitted as much: (appellant’s abstract) “Two or three years ago, at Mr. Matkin’s sawmill I had some (logs) sawed. I realized that I could make more money or profit out of my logs by owning my own sawmill, because of the oversawage. The mill was acquired not only to use in assisting in the clearing operations but to enable me to make a profit.”

Finding no error, the judgment is affirmed.


text:
    Griffin v. Isgrig.
    5-1251
    302 S. W. 2d 777
    Opinion delivered June 3, 1957.
    [Rehearing denied July 1, 1957]

      Frank J. Wills, for appellant.

      Gordon H. Sullivan and Harry C. Robinson, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit involving lands in Sections 22, 23 and 24, in Township 1 North, Range 11 "West, in Pulaski County. All the parties to this litigation concede that these present lands are accretions.

Appellees, W. B. Isgrig and Southern Investment Company, filed this suit against appellant, W. H. Griffin. Isgrig claimed that he owned the E % of Sec. 22; the S % SW % Sec. 23; the Frl. SE % See. 23; and the Frl. NW % Sec. 23, together with all accretions. The Southern Investment Company claimed that it owned the N % SW % Sec. 23 and the S % SW % NW % Sec. 24, with all accretions. Both plaintiffs claimed that Griffin was trespassing and cutting timber on the lands owned by the plaintiffs, and should be enjoined and restrained. Plaintiffs also prayed to have their title quieted to the lands they owned, as just described. Griffin claimed the lands (a) by deeds; (b) by adverse possession; and (c) by reason of certain previous litigation asserted by him as being res judicata against the plaintiffs.

The Chancery Court appointed a Master, who heard the evidence over a period of several months and made a report of 30 pages. The Chancery Court entered a decree based on the Master’s Report and quieted the title of Isgrig and Southern Investment Company to all of the lands in Sections 22, 23 and 24, except a specific tract awarded Griffin on his plea of adverse possession. From failure to recover all of the lands in Sections 22, 23 and 24, Griffin has appealed; and Isgrig and Southern Investment Company have cross appealed from so much of the decree as awarded Griffin the small particularly described tract of a few acres in Section 23.

Appellant argues the case in this Court under six assignments, being: (I) The Chancellor was not legally bound to adopt the Master’s recommendations; (II) Appellant’s demurrer to the evidence should have been sustained; (III) the decree is against the preponderance of the evidence; (IV) there is no competent proof upon which to determine the accretion boundaries; (V) the fee of appellees’ engineer should not have been taxed as costs; and (VI) appellant should have been awarded damages.

I. Appellant’s First Point: “The Chancellor was not legally bound to adopt the Master’s recommendations.” The appellant objects to certain language that the Chancellor used in entering the decree based on the Master’s Report. Of course the Chancery Court was not legally bound to adopt the Master’s Report (see § 27-1815 Ark. Stats.); but in this case the Chancellor did adopt the Master’s Report and entered a decree in accordance with it. The question, here, is whether the decree as entered is against the preponderance of the evidence or erroneous for some other reason. Having disposed of the procedural point, we will group appellant’s other points under convenient topic headings; and will consider, first, Griffin’s claims to the lands involved. As heretofore stated, he claimed by (a) deeds, (b) adverse possession, and (c) res judicata. The matter of res judicata is not argued on appeal and is therefore abandoned, so we consider the other two claims.

II. Griffin’s Claim Based On Deeds Of Record. There were only two conveyances offered to support Griffin’s record title.

(a) There was a deed from R. F. Baldwin and wife to W. H. Griffin, dated May 17, 1940, and conveying “all of the lands of the grantors lying north and east of Fourche Báyou, and all accretions thereto, in Sections 9, 10 and 15, in Township 1 North, Range 11 West, and more particularly described as follows”. In the “particularly described” lands there is no reference to any lands in any sections except 9, 10 and 15. The only way that Griffin could claim that this deed covered the lands involved in this litigation, which are admitted to be south of the south line of Section 15 as extended, would be to show that said lands were accretions to the riparian shore of lands in Sections 15, 10 and 9. There is no sufficient proof that the lands involved in this litigation — south of the south line of Section 15 as extended easterly — are accretions to any lands in Sections 9, 10 or 15. The deed from Baldwin to Griffin did not invest Griffin with a title sufficient to award him the lands herein involved.

(b) There is a quitclaim deed from Gertrude W. Johnson, widow of Dr. Chas. F. Johnson, to W. H. Griffin and wife, dated December 20, 1952, and conveying certain definitely described lands in Section 15, Township 1 North, Range 11 West, “and all accretions thereto”. What we have said in regard to the Baldwin deed above applies equally here. In short, we find that Griffin failed to establish his title under his claim of deeds of record.

III. Griffin’s Claim Based On Adverse Possession. Griffin points to the following to establish his adverse possession:

(a) That in 1934 he leased from R. F. Baldwin all of Baldwin’s lands lying between Fourche Bayou and the Arkansas River; and that he (Griffin) continued to hold the Baldwin lands under said lease until he purchased them in 1940 by the deed from Baldwin herein-before mentioned.

(b) That in 1952 Griffin executed a timber deed to McBurnett Corporation.

(c) That in 1940 Griffin had certain lands placed on the tax books of Pnlaski County and began the payment of taxes on same, among which lands were included “accretions to Frl. SE % of Section 15 and accretions to N¥ NW % Section 15”, both in Township 1 North, Range 11 West; and

(d) That from 1934 (when he first leased the lands from Baldwin) until the present time, Griffin has pastured not only the lands north of the south line of Section 15, but also the lands south of the south line of Section 15 as extended; that at one time he erected some sort of a fence that embraced some of these lands (although the fence was soon washed away); that later he blazed trees to indicate his claimed boundary; that people in the vicinity from time to time got his permission to cut timber from the lands for firewood purposes; that many people knew he was claiming these lands in Sections 22, 23 and 24.

It must be remembered that — based on adverse possession — the Chancery Court awarded Griffin a small definitely described portion of lands south of the south boundary line of Section 15, since it was shown that Griffin had such small tract under fence and in cultivation. But, with the exception of this small tract so awarded him, we hold that Griffin’s proof of adverse possession for all of the remainder of the lands, south of the south boundary line of Section 15 as extended, fails to measure up to the quantum and quality of proof of adverse possession as required by law.

There is a line of cases holding that one in possession of land under a valid deed describing the tract, by actually holding and occupying a portion of the tract is deemed to have adverse possession to the extent of the boundaries described in the deed. Nall v. Phillips, 213 Ark. 92, 210 S. W. 2d 806; Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82; Crill v. Hudson, 71 Ark. 390, 74 S. W. 299. But the case at bar is not like the cited cases: because, here, Griffin does not have a deed of record, describing his boundaries, to any lands south of the south line of Section 15 as extended. So, in'-'order to prevail on Ms claim of adverse possession, Griffin must show actual or pedal possession to the extent of his boundaries. (Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236.)

In the recent case of Adkisson v. Starr, 222 Ark. 331, 260 S. W. 2d 956, we had occasion to consider this matter of adverse possession of accretions; and the evidence in the case at bar is no stronger on this matter of adverse possession than was the evidence rejected by us in Adkisson v. Starr. So, we hold that Griffin has failed in his plea of adverse possession to any of the lands south of the south boundary line of Section 15 as extended, except that small portion specifically described and awarded him in the decree herein.

IV. The Decree Quieting Appellees’ Title. Having decided that Griffin cannot prevail on Ms claim to any of the lands involved except the small portion awarded him, we come next to the question of whether the Chancery Court should have quieted the title of the appellees, Isgrig, et al, on the showing they made. They merely showed that they held deeds from their immediate grantors to the lands described in Sections 23 and 24. The appellees did not attempt to deraign the title of their grantors back to the sovereignty of the soil, nor did appellees establish that they or their grantors had acquired title to the lands by adverse possession. Thus, appellees only showed that they had deeds of record describing the premises. Such a showing is good for some purposes, but is not sufficient to justify a decree quieting title. In Coulter v. O’Kelly, 226 Ark. 836, 295 S. W. 2d 753, we held: “To be entitled to a decree quieting title, in an adversary suit, the plaintiff must deraign title from the government or from someone who is shown to be owner of the land by possession and/or payment of taxes”. So appellees did not offer sufficient proof to justify the decree quieting their title.

The decree quieting appellees ’ title was rendered by the Chancery Court on May 17, 1956; and our decision in the case of Coulter v. O’Kelly, supra, was not announced until October 29, 1956. We confess that prior to Coulter v. O’Kelly, supra, there was language in some of our opinions, such as Robeson v. Kempner, 182 Ark. 746, 32 S. W. 2d 616, and Skelton v. Ferguson, 222 Ark. 847, 262 S. W. 913, which could have misled appellees and the Chancery Court into believing that the appellees in the case at bar were not required to deraign a title. Thus, in order to afford complete equity, we are remanding the ease to the Chancery Court to allow appellees to offer proof of'title sufficient to support a decree under the holding in Coulter v. O’Kelly, supra. The proof will be limited to that one point, and future costs on that point will naturally be taxed against the appellees.

V. Cross Appeal. As heretofore stated, the appellant was awarded a small particularly described tract of a few acres in Section 23 because of his proof as to adverse possession; and appellees have cross appealed from that portion of the decree. A review of the evidence fails to convince us that the decree is in error in this regard, so the decree is affirmed on the cross appeal.

VI. Costs. Some complaint is made about the taxing of costs. We find no error on any item except the $420 survey fee of Chris Wright. The Chancery Court ordered this item paid equally by appellant and appellees. We hold that the appellees should pay this entire item. See Ark. State Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S. W. 2d 265. The costs in this Court are taxed against appellant.

Affirmed in part; reversed and remanded in part.

Mr. Justice Robinson disqualified and not participating.

       The survey of 1857 in the office of the State Land Commissioner (of which survey we take judicial notice — see West Ark. Digest “Evidence”, Key No. 23 — ), shows lands in existence in said sections in 1857. But the parties herein seem to agree that the Arkansas River changed its course southerly and southwesterly, so as to erode the original lands, and then later changed its course northerly and easterly, so as to form accretions to the riparian shore. No one herein has made any claim involving the application of § 10-203 Ark. Stats., so we treat the lands herein involved as accretions to the riparian shore;

       As hereinafter stated, the res judicata matter is not urged on appeal.

       Griffin at one time sought to have the cause transferred to law as an ejectment action, but later abandoned that claim and filed a cross complaint against his grantor, Baldwin. The cross complaint against Baldwin is not now before us in this case.

       It is well known that Section 15 is immediately north of Section 22, and that Sections 23 and 24 lie east of Section 22. So the south line of Section 15 extended easterly to the river would place all of Sections 22, ■23 and 24 south of such extended line.

       In Robeson v. Kempner we used this language: “Our Statutes do not require that plaintiffs in suits of this character be required to set out therein their chain of title. In ejectment suits, the statutes make such requirements. In suits in equity to quiet titles, allegations of ownership are sufficient upon which to base or found the actions.”

       In Skelton v. Ferguson there is this statement: “In a suit to quiet title, plaintiff is not required to deraign his title”.