source: Caselaw Access Project

author: Ward, J.

license: Public Domain

text:
    Hammond v. Peden.
    5-668
    278 S. W. 2d 96
    Opinion delivered April 25, 1955.

      W. J. Morrow, for appellant.

      Wiley W. Bean, for appellee.
   Ward, J.

Appellee, Leon Peden, filed a complaint against appellant, James Hammond, for alienating the love and affection of Ms wife, Nellie Peden, and Ms three children. The jury returned a verdict in favor of appellee and assessed his damages at $25,000.00, from which judgment appellant has appealed.

The complaint alleged that Peden and his wife were married in 1941 and lived together as husband and wife until October 1, 1952, when they were divorced by reason of Hammond’s unwarranted attention to his wife; that this divorce was annulled and he and his wife, becoming reconciled, lived happily together as husband and wife until January 28, 1954, and; that Hammond, well knowing that Peden and his wife were living happily together, willfully, wickedly and maliciously sought to obtain the affection of plaintiff’s wife and enticed her to leave her home at frequent intervals in company with Hammond and that Hammond, by manifestations of affection, induced Nellie Peden to leave plaintiff on the date last above mentioned. It was further alleged that Hammond, by his allegedly willful acts, deprived the plaintiff of the companionship, love and affection of his three children. Peden asked $25,000.00 for the loss of the love and affection of his wife and $75,000.00 for the loss of the companionship, love and affection of Ms children.

On appeal appellant sets out several grounds upon which he relies for a reversal of the judgment rendered against him. We will discuss them separately below.

1. Competency of jurors. Two prospective jurors, in answer to interrogatories by appellant’s attorney, stated, in effect, that they had heard about the case and had formed an opinion in regard thereto and it would take evidence to remove that opinion. On examination by the court they stated, in effect, that they could and would lay aside such opinions and try the case according to the law and the evidence. The decision which we have reached on this point makes it unnecessary to set forth the questions and answers in detail.

The record fails to show that appellant exercised his right to peremptorily challenge these or any other jurors and that he failed to exhaust his right to challenge jurors as granted him by statute. "We have many times held that if a litigant fails to exhaust his peremptory challenges he waives any error committed by the court in failing to excuse a challenged juror. See Sullivan v. State, 161 Ark. 19, 257 S. W. 58; Shoop v. State, 209 Ark. 498, 190 S. W. 2d 988, and Jones v. State, 213 Ark. 863, 213 S. W. 2d 974. In the Shoop case, supra, at page 501 of the Arkansas Reports, it was stated:

“If it be conceded that the court erroneously refused to excuse the two prospective jurors for cause, still there is no showing in the record that appellant exhausted his peremptory challenges. Where a defendant fails to exhaust his peremptory challenges, he waives any error the court may have committed in not excusing a juror for cause.” (Citing cases.)

We are not informed of any instance where our Court has applied this rule in a civil case, but we can see no reason why it should not apply in civil as well as criminal cases. In 31 Am. Jur., page 645, this same matter is discussed generally under paragraph 117 where it is stated that the rule applies in both civil and criminal cases. The rule was applied in civil cases in C. H. De Bow v. Cleveland, Cincinnati, Chicago Railway Company, 245 Ill. App. 158, and Mount v. Welsh, et al., 118 Or. 568, 247 Pac. 815.

2. Error is alleged because the trial court refused to permit appellant to introduce the complaint, waiver and depositions in the first divorce suit, but we think no error Avas committed. In the trial of the case it developed that appellee’s wife secured a divorce on October 1, 1952, but that the decree was set aside ten days later, after which time appellee and his wife again lived together. The court permitted appellant to show that such divorce was granted at the instance of the wife, and the decree was introduced in evidence. The complaint, waiver and depositions filed in that divorce suit were not competent evidence in the trial of this case. To have introduced them in evidence would have raised collateral issues only which in turn would have called for the introduction of further testimony. Moreover the divorce suit was between parties different from the parties in this litigation and the cause of action was not the same in both instances, so the proffered evidence would not come under the provisions of Ark. Stats., § 28-713.

3. Appellant states that “The way said jury arrived at the amount of said judgment was not upon any evidence presented in the trial of the case and was solely upon a misunderstanding of an entirely outside matter.” This contention is not elaborated upon in appellant’s brief and our attention is not called to any competent testimony or circumstance that would support it, and it must be rejected.

4. Next it is contended that the court erred in refusing to let the wife, Nellie Peden, testify concerning matters that took place or occurred prior to August 3, 1954, when the last divorce was obtained. It is not necessary to consider the admissibility of this character of testimony because appellant made no objection to the court’s ruling in excluding it. In proceeding under Act 555 of 1953 it is required under § 21 of said Act that the party object to the ruling of the court and make knoAvn to the court the action which he desires the court to take or he must state his objections to the action of the court and his grounds therefor. As stated this was not done in this instance by appellant.

5. It is most earnestly insisted by appellant that the judgment is not supported by tbe evidence. It is ■stated that there is no evidence to show that he caused Nellie Peden to leave her husband on January 28, 1954, or at any other time, and that there is no evidence to show that appellant at any time induced Nellie Peden to leave her husband. In considering this contention we of course must apply the well established rule that the verdict of the jury will not be disturbed by us if there is substantial testimony to support it. We find that there is substantial testimony in this instance. In general the testimony on the part of appellee shows that appellant had been keeping company with Nellie Peden prior to the divorce on October 1, 1952. In fact it appears that this divorce was the result of appellee’s finding out about a date which his wife had with appellant and a confession from her that she was going out to meet James •Hammond. The uncontradicted testimony shows that after the above mentioned date and prior to January 28, 1954, when appellee and his wife separated, culminating in a divorce on August 3, 1954, appellant regularly kept company with Nellie Peden over a period of several months during which time he was seen with her in his car approximately twice a week driving or parked on a dirt road about a mile north of Clarksville. On one occasion when appellant’s car was parked Nellie Peden tried to conceal her identity from the witness. There was testimony also that appellant was seen frequently at appellee’s house and that he took Nellie Peden riding in his airplane. Appellee testified that he and his wife and children lived happily together until appellant interfered, and it is certain that, for some reason, his home is now broken up and he no longer has the consortium of his wife and the companionship of his children.

It is pointed out by appellant that in Roach v. Scott, 157 Ark. 152, 247 S. W. 1037, it was held the burden was on appellee to show his wife was infatuated with appellant,. and that appellant, by his wrongful acts, caused it. We agree that is the law, and we also agree , with, and adopt as our language here, the last portion of the cited ■opinion, where it was said: “We might have reached a different conclusion from that reached by the jury had we been triers of fact, but, after carefully considering the argument of counsel in their briefs, * * *, we :are convinced that the evidence is legally sufficient to sustain the verdict. The jury were the judges of the •evidence and the credibility of the witnesses. When all of the testimony is considered, it cannot be said that •there was no evidence to sustain the verdict.”

6. Finally it is insisted by appellant that the verdict is excessive, but his brief points out no reason, testimony or circumstance to support this contention except to assert that in a majority of similar cases heretofore considered by this Court the judgments were less than the judgment in this case. Since, as we have concluded above, the evidence was sufficient to sustain a judgment in some amount in favor of appellee, we know of no established rule by which to weigh in dollars and cents the value to appellee of the loss of the companionship, love and affection of his wife and children. This was a matter for the jury to pass upon after listening to all of the testimony and the instructions of the court. We have already reviewed the testimony and appellant makes no objections to any of the court’s instructions.

Affirmed.


author: Robinson, J.

text:
    Beasley v. Beasley.
    180
    278 S. W. 2d 100
    Opinion delivered April 25, 1955.

      Rex W. Perkins, Lee Williams and E. J. Ball, for appellant.

      James E. Evans and C. D. Atkinson, for appellee.
   Robinson, J.

The issue here is whether the transfer of a deed by the grantor to the grantee was a delivery conveying title, or whether the transfer was to be' considered a delivery sufficient to convey title only upon the happening of a future event.

In May, 1948, R. N. Beasley, anticipating that a judgment might be rendered against him growing out of an automobile accident, and seeking to avoid the consequences thereof, deeded to his brother, Alpha Beasley, a small tract of land with improvements consisting of R. N. ’s home and some apartments. In May, 1949, Alpha executed and delivered a deed to the same property to R. N. In March, 1950, R. N. died without having recorded the deed from Alpha. In September, 1952, Ida, wife of R. N., died. In May, 1953, the appellees herein, heirs of R. N., filed this suit for partition of the property; by intervention, the heirs of Ida became parties. There is also an allegation that Alpha had collected certain rents on the property for which he should be held accountable. Alpha, answering, claimed to be the owner of the fee. At the trial, he offered to testify that when he delivered the deed to R. N. they had an oral agreement to the effect that the deed would not be placed on record, and that if R. N. was the first of the two to die, Ida, the wife of R. N., would return the deed to Alpha.

The trial court held the proffered testimony as to the alleged oral agreement to be inadmissible as evidence. Appellants contend that the court erred in excluding this evidence, and that when it is considered it proves there was not such a delivery of the deed as to convey title.

We need not decide the question of whether the testimony was admissible, for assuming without deciding that it should have been admitted as evidence, still it is hot sufficient to establish Alpha’s claim that the deed did not convey the fee simple title. The circumstances tend to prove that Alpha merely held the title in the first instance as a convenience for R. N. Alpha paid nothing for the property to start with, and received nothing from R. N. when he reconveyed the land. In all probability, if a judgment had been rendered against R. N., the judgment' creditors, by bringing to light' the true facts, could have set aside the deed to Alpha. " There is no evidence in the record to support Alpha’s contention that there was an oral agreement of a conditional delivery except, perhaps, the fact that the deed to R. N. was not recorded, and the testimony of Alpha and his wife Minnie. Since they are parties, their testimony does not stand undisputed. Lewis v. Lewis, 222 Ark. 743, 262 S. W. 2d 456.

The inferences to be derived from the evidence contradict Alpha. He says that he wanted to give the deed to R. N. before his (Alpha’s) daughter became of age, implying that he wanted to prevent her from acquiring any rights he thought she might have at that time. No explanation is made as to the reason he wanted to convey the property contrary to the interests of his own daughter. A reasonable inference is that the property as a matter of fact belonged to R. N.

Further, he says that R. N. and Ida were to have the. rents on the property as long as they lived, but there is no explanation as to the reason why Alpha would want to give rents on property he owned to R. N. and Ida. Moreover, after R. N. died the property was improved by putting in modern conveniences, and money was borrowed from the bank for that purpose. Alpha signed the $480.00 note with Ida, but why would Alpha require Ida, an old lady, to sign a note with him to fix up property that he owned? It is more reasonable to believe that Alpha was helping Ida borrow the money to improve property that she owned. Alpha attempts to explain this transaction by saying that Ida was supposed to use the rents to pay off the note. This explanation does not carry much weight as going to prove Alpha to be the owner.

Alpha claims that he was in poor health, and gives this as one of the reasons for delivering the deed to R. N. If Alpha’s version of the transaction is correct and if he had died first, R. N. would have taken title, thus depriving Alpha’s widow and daughter of any interest in the property. No explanation is made of such an unusual transaction. Alpha does not make out a case by a preponderance of the evidence; but, even so, a preponderance of the evidence would not be sufficient to set aside a deed, regular on its face and delivered by the grantor to the grantee, on the ground that there was a contemporaneous agreement that the deed would not take effect until the happening of some future event. Assuming such a showing could be made, it would have to be by evidence which would be clear, convincing and decisive. Harvey v. Ledbetter, 219 Ark. 27, 240 S. W. 2d 18; Morton v. Morton, 82 Ark. 492, 102 S. W. 213. The evidence in this case falls far short of that requirement.

The decree provides for the fixing of attorneys’ fees to be paid out of the proceeds of the sale of the property. Appellants contend that since this is an adversary proceeding, plaintiffs are not entitled to be paid a fee from that portion of the property going to appellants. Appellants are correct in their contention in this respect. Lewis v. Crawford, 175 Ark. 1012, 1 S. W. 2d 26; McHenry v. McHenry, 209 Ark. 977, 193 S. W. 2d 321. Hence, the decree should be modified to the extent of disallowing the attorneys’ fee. This will leave the parties to pay their own attorneys.

As modified, the decree is affirmed.


author: Ed. F. MoFaddin, Justice.

text:
    Incorporated Town of Mountain View v. Lackey.
    5-660
    278 S. W. 2d 653
    Opinion delivered May 9, 1955.

      Ben B. Williamson and Ivan Williamson, for appellant.

      W. D. Murphy, Jr., and Chas. F. Cole, for appellee.
   Ed. F. MoFaddin, Justice.

I. Dedication. Mountain View (hereinafter called “Town”) is and was at all times here involved an incorporated town. In 1921 Messrs. Lackey, Storey, Webb, Evans and Rosa — as partners — owned a tract of 186 acres north of and adjoining the Town. The partners platted this 186-acre tract into lots, blocks, streets, alleys and areas, and called the tract “White Water Addition to the Town of Mountain View. ’ ’ On this plat there was the herein disputed 10 acres labelled, “Laid out for City Park — 10 acres”; and there was shown in the park the location of two springs of great notoriety in the community. This plat was placed of record; and lots and block were sold with reference to it. By 1926 more than half of the property in White Water Addition had been sold to the public. At the present time all of the property in the Addition had been sold except the 10-acre park here in issue.

We have many times held that when the owner of land makes a plat thereof and sells lots with reference to it, this amounts to a dedication of the streets and public ways shown on the plat. See Hope v. Shiver, 77 Ark. 177, 90 S. W. 1003. In Frauenthal v. Slaten, 91 Ark. 350, 121 S. W. 395, the rule is stated:

“The law bearing on the question of dedication of property to the public use is well settled by the decisions of this court. An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. He will also be held to have thereby dedicated to the public use squares, parks, and other public places marked as such on the plat. The dedication becomes irrevocable the moment that these acts concur. Hope v. Shiver, 77 Ark. 177; Davies v. Epstein, Id. 221; Dickinson v. Ark. City Imp. Co., Id. 570; Brewer v. Pine Bluff, 80 Ark. 486; Stuttgart v. John, 85 Ark. 520.”

In the case at bar the surveyor who made the original plat of White Water Addition testified that all of the five partners authorized him to make the survey and the plat, and to record it. A real estate broker testified that the said five owners of White Water Addition gave him a copy of the plat showing the 10-acre park and told him to sell the lots with particular emphasis on the fact that the park contained the two springs always to be open to the public. One witness testified that he purchased lots for himself and his relatives, just across the street from the park, because of the fact that it was a public park. Thus there was a dedication within the holdings of our cases.

II. Acceptance of Dedication. It is urged by Appellee Lackey that in 1921 the White Water Addition was outside the boundaries of the Town so there could be no acceptance of the dedication by the Town. We conclude that this contention is without merit. Act 85 of 1913 (as now found in § 35-901, Ark. Stats.) gives municipal corporations the power of eminent domain to condemn property for parks, etc.; and the Statute provides:

“. . . and, in case of municipal corporations, such parks and boulevards may be situated at a distance of not exceeding five miles from the corporate limits and shall yet remain under the jurisdiction of the municipal corporation. ’ ’

Certainly if a municipal corporation has the power of eminent domain to acquire a park within five miles of the municipal boundaries, the municipality can likewise accept the dedication of a park within such distance. Here the park was one-fourth of a mile from the corporate boundaries of the Town in 1921. Therefore the Town had the Legislative authority to acquire the park. In Hankins v. Pine Bluff, 217 Ark. 226, 229 S. W. 2d 231, we said:

“The two essential elements of a dedication are the owners’ appropriation of the property to the intended use and its acceptance by the public. No specific duration of the public user is required to complete the dedication. Ayers v. State, 59 Ark. 26, 26 S. W. 19. Nor need the dedication be evidenced by a deed. Conner v. Heaton, 205 Ark. 269, 168 S. W. 2d 399.”

The Town Council of Mountain View did not adopt a Resolution formally accepting the park; but the fact of the actual acceptance is shown by a number of witnesses. One witness testified that he helped improve the park because he was helping the Town; that benches were built, paths cleared, stairways erectéd; that campers used the park; that many people came to use the water; and that rock steps were built from the springs leading toward the Town. The same witness testified that he lived across the street from the park from 1922 to 1928 and that he saw and participated in the improvements made in the park; that the work was done by the public and without any compensation; that a passageway was prepared from the springs in the park directly toward the Town; that no one in the area had a well; and that all depended on the springs for water supply.

Another witness testified that he, along with six or seven other persons, worked two or three days cutting-underbrush, erecting benches and cleaning up the 10-acre area; and that the work was 'done at the behest of the Town. Witnesses testified that when the water works were installed in Mountain View in 1936 the springs in the park were checked to determine whether they could furnish enough water for the Town, as the Town at that time considered it owned the 10 acres in controversy. Another witness testified that he, along with several others, helped clean up the park area for the Town; and that the work was donated.

The case at bar is in many respects similar to, and ruled by, the case of Frauenthal v. Slaten, 91 Ark. 350, 121 S. W. 395. The case of Mebane v. Wynne, 127 Ark. 364, 192 S. W. 221, is differentiated from the case at bar in factual matters: because in Mebcme v. Wynne the opinion recites:

“. . . the space designated,as ‘Franklin Square’ has never at any time been put to any public use, and has never been accepted by the City Council as a public place. . . .”

In the case at bar the 10-acre park was used by the public over the years; the springs are still being used; and the cleaning up and improvement of the park was done “at the behest of the Town.” In Gowers v. Van Buren, 210 Ark. 776, 197 S. W. 2d 741, we quoted earlier cases to the effect that a formal acceptance of dedication is not necessary; it is sufficient if there be in fact an acceptance of such dedication. The facts in this case clearly show actual acceptance of the dedication.

III. Limitations. In the Lower Court Appellee Lackey claimed that he had acquired deeds from all of his former partners to all of the White Water Addition; that by 1946 all of the Addition had been sold except the 10-acre park here involved; and that since 1946 Lackey has paid taxes on this 10-acre park. This plea of limitations is without merit for a number of reasons, only one of which need be mentioned: Act 666 of 1923 (as now found in § 37-109, Ark. Stats.) has this pertinent language:

“Hereafter no title or right of possession to any . . . public park . . . shall or can be acquired by adverse possession or adverse occupancy. . . .”

.Since appellee does not claim any adverse possession to have started prior to 1923 the said Act 666 is a bar to his claim because the park was dedicated and accepted by the public prior to the effective date of the 1923 Act.

Conclusion.

It follows that the decree of the Chancery Court is reversed and the cause is remanded with directions to enter a decree declaring the 10-acre tract to be a public park in accordance with the views expressed in this opinion.

Chief Justice Seamsteb not participating.

       These appellants are Messrs. Storey and Rosa, and the heirs of Messrs. Webb and Evans.

       For other cases and statements regarding “dedication by plat” see Butler v. Emerson, 211 Ark. 707, 202 S. W. 2d 599; 16 Am. Jur. 365; 39 Am. Jur. 808; 19 C. J. 935; 26 C. J. S. 82; and 7 A. L. R. 2d 607.

       We have not overlooked Amendment No. 13 to our Constitution adopted in the General Election in 1926 which allows municipal corporations to issue bonds for the purchase, etc., of public parks “. . . located either within or without the corporate limits of such municipality. . .' But Act 85 of 1913 was the law in 1921 when the transactions involved in this case had their inception.

       For other cases and writings regarding acceptance of dedication see Poskey v. Bradley, 209 Ark. 93, 189 S. W. 2d 806; Lester v. Walker, 177 Ark. 1097, 9 S. W. 2d 323; 16 Am. Jur. 416; and 26 C. J. S. 103.


author: Minor W. Millwee, Justice.

text:
    McDaniel v. Johnson.
    5-664
    278 S. W. 2d 657
    Opinion delivered May 9, 1955.

      Wiley W. Bean, for appellant.

      D. B. Bartlett, for appellee.
   Minor W. Millwee, Justice.

The parties to this suit are neighbors who reside on adjacent properties in the city of Clarksville, Arkansas. Appellant shot and killed appellee’s registered pointer bird dog on the night of Jnne 27, 1954. In an action by appellee for damages appellant admitted killing the dog bnt asserted that it was done to protect his cattle from attack by the dog after due notice to appellee of prior trespasses and a request that the dog be kept away from appellant’s property. The jury found for appellee and fixed the market value of the dog at $20. In response to a special interrogatory the jury also found the killing to be willful, malicious and wanton as alleged by appellee. The trial court entered judgment for treble damages in the sum of $60.00.

For reversal appellant challe,nges the sufficiency of the evidence to support the verdict, and asserts that he had a legal right to kill the dog under the undisputed evidence.

Each of the parties maintains a pasture on his premises in which he keeps several head of cattle. According to the testimony of appellant he talked to appellee’s wife by telephone about 2 or 3 months prior to the killing and told her appellee’s dog was running his cattle and asked that it be kept up. In response to a telephone call from Mrs. Fletcher Thompson, another neighbor, on the night in question, appellant stated that he secured his gun and a flashlight and proceeded to his pasture where he found appellee’s bird dog and a German Shepherd chasing his cattle. He ran the dogs away and waited a few minutes when they returned and again started chasing and snapping at the cattle. After backing the dogs off he intentionally shot and killed appellee’s dog bnt was unable to get a shot at the other dog because it was between appellant and a calf until it ran away. Appellant also stated that he noticed an insignificant bite on the tail of a calf the next morning; also a gash about 3 inches long on the left front leg of a steer which he first thought was a simple cut but which required treatment by a veterinarian about 2 months later when it failed to heal properly. Although appellee’s dog had chased his cattle and had been a regular nuisance around his place for 6 or 7 months, appellant admitted that he had never talked to appellee about it personally and only talked to appellee’s wife the one time. Mrs. McDaniel testified that she had seen appellee’s dog in their pasture running cattle “a number of times” previously but did not see it on the night in question.

Mrs. Fletcher Thompson, who telephoned appellant on the night in question, testified that she had heard dogs running appellant’s cattle previously. Although she had seen appellee’s dog in her yard and in appellant’s yard often, she had never seen it running appellant’s cattle.

Appellee testified that appellant had never notified him that the dog was running his cattle nor asked that it be kept up. Appellee and others who frequently hunted with the dog testified they never knew of it running cattle and that it was afraid of, and would run from, a cow. Appellant had the dead dog hauled to the “city dump” without informing appellee that he had killed it. Appellee learned of the dog’s death when municipal authorities objected to it being placed on the dump. Appellee stated that he kept the dog up most of the time and that -it had never chased the cattle he kept in his own pasture. On cross-examination appellee further testified : “ Q. I will ask you this. Wasn’t that dog awfully hard to keep up? A. Yes. Q. He would chew the wire into on the pen? A. Yes. Q. And get out? A. Yes. Q. Did you know that he ate the wire into on Charlie’s [appellant’s] pen and got in there with a little registered screw tail bull dog of his, and that they had to have her operated on, to take the pups from her? A. I think that is the reason that Charlie killed my dog was on that account, instead of him running his cattle. Q. That would be a good reason wouldn’t it? A. That is not for me to decide.”

Appellee’s wife testified that 6 months prior to the killing appellant told her over the telephone that some dogs were running his cattle and that he thought one of them might be appellee’s dog but he was not sure. Appellant promised to call back and let them know if he found out for sure that appellee’s' dog was involved but he never did so. She informed appellee of this conversation.

Appellant says the undisputed evidence shows that ho had a right to kill the dog in defense of his cattle. It is insisted there is no evidence to dispute the fact that the dog had been running his cattle for several months with appellee’s knowledge and was attacking the cattle at the time of the shooting. The evidence as a whole shows a sharp factual dispute as to whether the dog had been molesting appellant’s cattle or would chase cattle at all; also as to whether appellee permitted the dog to run at large with knowledge of any vicious tendency. While it may be true that appellant was the only person present at the time of the killing, we have repeatedly held that the testimony of a party to a suit, or even one interested in the result of litigation, is not to be treated as undisputed in testing the legal sufficiency of the evidence. Phelps v. Partee, 208 Ark. 212, 185 S. W. 2d 705; Elliot v. Foster, 216 Ark. 104, 224 S. W. 2d 353.

Since appellant admitted that he killed the dog intentionally, it devolved upon him to show that he acted in good, faith in order to protect his property, and not negligently or wantonly. Kanis v. Rogers, 119 Ark. 120, 177 S. W. 413. This issue together with the questions whether appellee permitted his dog to run at large with knowledge that it would injure cattle, and whether appellant acted in good faith or willfully, maliciously and wantonly in killing the dog were submitted to the jury under instructions to which no objection was made by either side. In our opinion the evidence was sufficient to sustain the verdict. The fact that we might have reached- a different conclusion if we had been the triers of fact would not justify us in invading the province of a Johnson county jury.

Affirmed.

Chief Justice Seamster not participating.


author: George Rose Smith, J.

text:
    Moore v. Marks.
    5-639
    278 S. W. 2d 659
    Opinion delivered May 9, 1955.

      Heartsill Rag on and G. Randolph Warner, Jr., for appellant.

      Gean £ Gean, for appellee.
   George Rose Smith, J.

This is a suit by the appellee, A. M. Marks, for specific performance of a contract by which he agreed to purchase certain real property from the appellants, Mr. and Mrs. Hoyt B. Moore. The negotiations leading up to the contract were conducted through a real estate dealer, Harward Barry. The pivotal question, upon which the validity of the contract depends, is whether Barry was acting as agent for the buyer or as agent for the sellers. The chancellor found that Barry was representing the sellers, and upon that finding the court granted the prayer for specific performance.

In August of 1954 the Moores attempted to sell this property themselves by advertising it in a Fort Smith newspaper. Barry saw the advertisement and called on Moore, for whom he had previously bought and sold property. Barry testifies that he was employed by Moore and that his commission was discussed and agreed upon. It cannot be said that Moore denies this testimony; to the contrary, he pretty well admits it. These are excerpts from Moore’s testimony:

“Q. Did you put the property in Ms hands to sell!

“A. Yes, sir, we had talked it over.

if* ^ ^ ^ #

“Q. Did you authorize, or employ, Harward Barry to sell your property . . . ¶

“A. (Pauses) Well, at that time I did.”

Barry testified that after his employment by Moore he approached Marks as a prospective purchaser; Barry states positively that he had no agreement with Marks for the payment of any commission. It is not clear how long Barry negotiated with Marks, but on the afternoon of Friday, September 3, Marks orally made to Barry a tentative offer of $13,500, which was slightly less than the Moores had been asking. That evening Barry discussed this offer with the Moores, and they signed the contract now in issue, by which they agreed to sell the property at Marks’s figure. Upon leaving the Moores that evening Barry took the signed contract to Marks and left it with him. The contract provided that it should be void unless earnest money were put up by noon on the following Tuesday.

On the next day, Saturday, September 4, the Moores received a better offer for the property. Hoyt Moore promptly telephoned Barry, but the exact effect of their conversation is in dispute. Moore says that when Barry told him that the contract had been left with Marks, he informed Barry that the deal was off and directed Barry to pick up the contract before Marks signed it. Barry says that he did not understand Moore’s position to have been this clear-cut, but in the view we take the result is the same even if Moore’s directions were as positive as he says.

On. the following Monday, September 6, Marks signed the contract and delivered it, together with the earnest money, to Barry. If Barry had really been told to drop the matter he violated his instructions, for he accepted the contract and the earnest money. The Moores’ subsequent refusal to perform the agreement led to this litigation.

In our opinion the fact that Barry was the agent of the Moores is practically undisputed. We have summarized the oral evidence, which consists of Barry’s positive assertions that he was employed by Moore and of Moore’s reluctant admissions that these assertions are time. In contending that Barry was not their agent the Moores rely almost entirely upon the terms of the contract of sale, which they think to show conclusively that Barry was the agent of Marks. In all material respects this contract is the identical printed form that was quoted in full in Brissaud v. Rogers, 218 Ark. 369, 236 S. W. 2d 439. The printed form is entitled Offer and Acceptance. By the form the buyer purports to authorize the named real estate agent “to offer for my account” a certain sum for the property, all the conditions of the contract being stated in the offer. After the buyer’s signature spaces are provided for the agent to acknowledge receipt of the earnest money and for the seller to accept the offer. Here it happened that the Moores first signed the acceptance, on Friday, and Marks completed the execution of the contract on the succeeding Monday.

We think it plain that the language of this printed form did not convert Barry’s agency for the sellers into an incompatible and disloyal attempt on his part to represent the buyer. The form is evidently designed for use in transactions in which a real estate dealer acts as an intermediary between the parties. Its purpose is not to declare the existence of an agency but merely to reduce to writing a firm offer that may be submitted by either party to the other. Here it was the Moores who made the written offer, by filling in the contract and signing in tlie space provided for the seller’s acceptance. Marks completed the contract by accepting that offer.

Once it is decided that Barry was the agent of the Moores, the case involves only simple and familiar rules of law. From the point of view of Marks, who appears to have acted in good faith all along, it can hardly be doubted that a binding contract came into existence. On Friday night Marks received from the sellers’ agent a signed offer, which was subject to acceptance by noon of the next Tuesday. Without notice of the sellers ’ change of mind Marks accepted the offer within the time allowed and delivered his check for the earnest money to the agent. Marks had manifestly done all that was required of him.

Upon the undisputed facts it is clear that the Moores’ effort to withdraw their offer was ineffective. One dealing with an admitted agent, even though he be a special agent, is entitled to assume that the agent is clothed with authority coextensive with its apparent scope and is not bound by the principal’s specific instructions of which the third person has no notice. Three States Lbr. Co. v. Moore, 132 Ark. 371, 201 S. W. 508; Slayden v. Augusta Cooperage Co., 163 Ark. 638, 260 S. W. 741. Two other more specific rules are also applicable. One is that if the principal knows that the agent has begun to deal with a third person, the agent’s apparent authority cannot be terminated unless the third person has notice of the termination. Rest., Agency, § 129. The other is that similar notice of termination is re.quired when the principal has entrusted to the agent a writing which manifests the agent’s authority and which is meant to be shown to third persons. Ibid., § 130. Here Hoyt Moore admits that he knew Barry was negotiating with a man named Marks, and the Moores entrusted Barry with a signed copy of the proposed contract. In these circumstances Barry’s apparent authority to consummate the sale could not be withdrawn without notice having been brought home to Marks.

A minor ■ contention is that Marks was required to pay the entire purchase price of $13,500, rather than just the earnest money, by noon on Tuesday, September 7. It is shown that when the printed form was filled out and signed by the Moores on Friday evening, the amount of the purchase price was inserted, but the spaces for the earnest money and for the remaining balance that was to be paid on delivery of the deed were left blank. The contract, however, clearly contemplated a deposit of earnest money, as it provided that this deposit had to be made by noon, September 7. It was patently intended that Barry and the buyer would fix the amount of the earnest money and insert this detail in the agreement. As completed, the contract requires that the entire unpaid balance be paid upon the delivery of the deed, which is all that the sellers are entitled to demand.

Affirmed.

Mile wee, J., dissents. Seamster, C. J., not participating.


text:
    Hutchison v. Sheppard.
    5-659
    279 S. W. 2d 33
    Opinion delivered May 9, 1955.
    [Rehearing denied June 6, 1955.]

      Pichenis & Pichens, for appellant.'

      Kaneaster Hodges, for appellee.
   George Rose Smith, J.

This is a suit by Kate Anthony Sheppard and others to recover possession of 120 acres of land. The defendants assert title to the property and, if their claim of title should be rejected, seek to recover the value of their improvements to the land. The chancellor held that Mrs. Sheppard has a life estate which entitles her to possession, but the defendants were awarded $1,000 for their improvements. The defendants have appealed on the issue of title, and the plaintiffs have cross appealed from the $1,000 allowance for improvements.

The principal issues turn upon the construction of three separate deeds, each presenting separate questions of law. The first deed was executed by Samuel Anthony, who was the father of four children — Kate (now Mrs. Sheppard), Edgar, Ethel, and Emma. On January 27, 1914, Samuel Anthony conveyed 280 acres, including the 120 now in dispute, to Kate and Edgar “for the term of their natural lives and to the heirs of each of their bodies in fee.” The habendum clause reads: “To Have and To Hold, all of the above described lands unto the parties of the second part during the term of their natural lives, then to descend in fee simple to the heirs of their brother [body] begotten. If either one of the parties of the second part should die without issue- surviving, then that one’s-live [life] estate, or the remainder thereof to vest in the survivor.”

In 1924 Kate and Edgar partitioned 240 of the 280 acres, the land now in question going to Edgar. The material parts of the partition deed are these:

“Whereas, [Edgar and Kate] are the owners for life as tenants in common and are in possession of the following described lands [240 acres described], and;

“Whereas, the said tenants in common acquired a life estate in said lands under ... a certain deed of conveyance from their father Samuel W. Anthony, dated the 27th day of January, 1914 . . . and;

“Whereas, the said tenants in common have agreed upon a partition of said lands so that each may have and hold his or her interest therein in severalty and in dividing said lands have made the allotment to each as near in value as possible:

“Now, Therefore, for the purpose of making partition of all the real property above described, and in consideration thereof, the parties hereto do mutually covenant and agree, each with the other, as follows:

‘ ‘ [First, Edgar, in language similar to that next to be quoted, conveys to Kate the 120 acres allotted to her.]

“Second: [Kate], for the purpose of said partition and in consideration thereof, does by these presents, grant, sell and quitclaim unto the said Edgar Anthony, all her right, title, interest and claim in and to [the 120 acres now in controversy].

“To Have and To Hold the same unto the said Edgar Anthony and unto his heirs and assigns forever, together with all the tenements thereon, and rights, ways, improvements, appurtenances and hereditaments thereunto belonging.”

.After the land had been so partitioned Edgar Anthony, on November 23, 1927, conveyed his 120 acres to Virgil Hutchison by the third deed involved, which we quote in part:

“Warranty Deed

“Know All Men By These Presents:

That I, Edgar Anthony, ... do hereby grant, bargain, sell and convey unto . . . Virgil Hutchison and unto his heirs and assigns forever the following lands . . . :

“My entire interest in and to [the 120 acres now in dispute].

“To have and to hold the same unto the said Virgil Hutchison and unto his heirs and assigns forever, with all appurtenances thereunto belonging.

“And I hereby covenant with the said Virgil Hutchison that I will forever warrant and defend the title to my interest in said lands against all claims whatever.”

Virgil Hutchison took possession under the above deed, and by various mesne conveyances his title has now passed to the appellants, Porter and Zelma Hutchison. Edgar Anthony died without issue on January 7, 1953, his only child having predeceased him before reaching maturity. After Edgar’s death the present action in ejectment (later transferred to equitj^) was brought by Kate Anthony Sheppard, her sister Ethel, and the two children of the third sister, Emma Anthony Mantooth, who had died on some date not disclosed by the record. It is shown by undisputed proof that Mrs. Sheppard is childless and is past the childbearing age. In Greer v. Parker, 209 Ark. 553, 191 S. W. 2d 584, we gave effect to a stipulation that the life tenant, a woman of sixtv-six, was too old to have children.

The appellants’ two asserted claims to the fee simple title may be disposed of quickly. First, it is contended that the deed from Samuel Anthony to Kate and Edgar conveyed the fee by operation of the Rule in Shelley’s Case. That rule, however, applies only when the remainder is to the life tenant’s heirs generally. Here the remainder was to the life tenants’ bodily heirs, and it has long been settled that such a conveyance creates a life estate in the grantee with a contingent remainder to his bodily heirs. Horsley v. Hilburn, 44 Ark. 458. Nor does it matter that Edgar Anthony had a child who predeceased him; for, as the Horsley case held, the remainder does not vest until the death of the life tenant with issue surviving.

Second, the appellants rely upon a tax title which they purchased in 1947 from E. D. Wilmans. It was, however, the duty of the appellants and their predecessors in title, as holders of the life estate, to keep the taxes paid. Ark. Stats. 1947, <§ 84-922. We need not cite the many cases holding that a life tenant’s purchase of a tax title resulting from his failure to pay the taxes amounts merely to a redemption.

The appellants also contend that even if their claims to the fee simple are rejected they are nevertheless entitled to retain possession during Kate Anthony Sheppard’s lifetime. It will be remembered that Samuel Anthony’s deed to Kate and Edgar and their bodily heirs provided that if either should die without issue his life estate, or the remainder thereof, should vest in the survivor. It is the appellants’ theory that, with respect to the 120 acres now in issue, Kate’s rights as surviving life tenant passed to Edgar and his grantees as a result of the 1924 partition deed.

Such a construction would violate the principles that apply uniquely to partition deeds. The law sensibly holds that when cotenants simply agree upon a division of the common property, with no independent consideration being paid, their purpose is taken to be the severance of the unity of possession rather than the creation of a new estate in either party. “It is generally held that a partition of land creates no new title to the shares set off to the parties to be held in severalty, whether the partition be made by act of the parties or by a judgment or decree of the court. While its effect is to allocate the share of each in his allotted parcel of the land, and extinguish his interest in all of the others, the title by which he holds his divided share is the same as that by which his undivided interest in the estate in common was held. ” Wofford v. Jackson, 194 Ark. 1049, 111 S. W. 2d 542.

This court has often recognized and applied the rule. For example, in Webb v. Nease, 66 Ark. 155, 49 S. W. 1081, a mother and son owned 200 acres together, the son owning an undivided three-fourths and the mother owning the other one-fourth, with rights of dower and homestead in the whole. By oral agreement, confirmed by possession, they partitioned the land so that each took about 100 acres. It was held that the mother did not thereby acquire the fee to her allotted acreage. "When it is ascertained that she had certain interests in this land, then the oral agreement of partition made with the other party interested in the land should, in the absence of evidence to the contrary, be attributed to a recognition and allotment of the interests ‘that she actually owned, and not be allowed to create a new estate in her.” Other applications of the principle may be found in Liberty Central Trust Co. v. Vaughan, 167 Ark. 219, 267 S. W. 361, and Bowen v. Frank, 179 Ark. 1004, 18 S. W. 2d 1037. The Supreme Court of Illinois summarized the matter by saying: "A decree or judgment in partition has no other effect than to sever the unity of possession, and does not vest in either of the cotenants any new or different title. After the partition each party has precisely the same title which he had before, but that which was before a joint possession is turned into a several one. The same is true of a voluntary partition. Each party transfers or releases the interest which he had in all the land for an exclusive and fixed possession in a part, and he does not derive title or interest from his cotenant by such transfer so that either can be said to hold under the other.” Cole v. Cole, 292 Ill. 154, 126 N. E. 752, 38 A. L. R. 719.

When Kate and Edgar Anthony voluntarily divided 240 acres in 1924 they declared in the preamble to their conveyance that they were "the owners for life as tenants in common,” that they had acquired “a life estate” from Samuel Anthony, and that the partition had been agreed upon so that each might "hold his or her interest therein in severalty.” Manifestly the only estate that Kate and Edgar held in common was the joint life tenancy that would exist only so long as both were living. This was likewise the only estate as to which unity of possession existed. By the rules of construction already mentioned, they are not deemed to have intended anything more than a severance of their common right of possession.

It is true that each of the cotenants also had an estate in the land that was not held in common. That is, if either should die without issue the survivor would be entitled, under the terms of Samuel Anthony’s 1914 deed, to a life estate in the whole rather than in an undivided half. But this right of survivorship was obviously not held in common; to the contrary, the distinct rights of survivorship were mutually exclusive, in that there could be only one survivor. Since there could never he a joint possession under the survivorship clause, there was no occasion to divide it so that each might hold his interest in severalty. Hence to construe the partition deed as transferring Kate’s rights of survivorship (in this 120 acres) to Edgar would result in the creation of a new title in Edgar. He would then hold not of the common grantor but of his cotenant. As the law does not put this interpretation upon a simple partition deed, the appellants’ claim to Mrs. Sheppard’s right of survivorship must be denied.

There remains the question of improvements. The appellants’ proof tends to show that the improvements are worth some $2,600. It is now contended that the chancellor’s allowance of $1,000 is demonstrably inadequate. The appellees insist that the appellants knew all along that their tenure was limited, so that they could not in good faith have believed themselves to be the owners of the land. Ark. Stats., § 34-1423.

Inasmuch as the appeal and cross appeal bring this entire issue to us de novo, we must attempt to determine from the record what amount, if any, should be allowed for the improvements. In approaching this issue we are confronted at the outset by an insurmountable defect of proof in the record. That is, it is not shown whether Samuel Anthony was still alive when Edgar sold his 120 acres in 1927, nor, if Samuel was then dead, whether he had died testate or intestate.

The importance of this information is easily understood. When Samuel Anthony conveyed to Kate and Edgar for life, with remainder to their bodily heirs, there remained in the grantor a divestable reversion, by which the fee would revert to him if the grantees should die without bodily heirs. Such a. reversion may be transferred by deed or by will and is a subject of inheritance upon the reversioner’s death intestate. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d 739; Core, Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111, 136.

Although the record is silent, it seems quite likely that Samuel Anthony died before 1927. It is alleged that part of the property described in the complaint was acquired by Samuel Anthony in 1866. If he was then as much as thirty years old he would, if alive, have been past ninety in 1927. But if he had died intestate his reversionary interest would have descended by the laws of descent and distribution, with Edgar inheriting a one-fourth interest.

In 1927 Edgar, by the third deed involved, conveyed his “entire interest” in the land now in question and warranted “the title to my interest” in the land. Although this deed does not purport to .convey the fee or any given lesser estate, within the operation of the after-acquired title statute, Ark. Stats., § 50-404, Wells v. Chase, 76 Ark. 417, 88 S. W. 1030, it was clearly effective to transfer whatever alienable interest Edgar had in the land. If, therefore, he had received by will or by intestacy a share in the reversionary estate, that interest now belongs to the appellants. Since Edgar died without issue and since Mrs. Sheppard, the other life tenant, is about seventy years old and childless, it is a practical certainty that the ’reversion will become a fee simple estate upon Mrs. Sheppard’s death.

These circumstances may bear upon the issue of improvements in at least two ways. First, if the appellants had not only an estate pur autre vie but also an interest in the' reversion, even though they were not aware of the latter, this fact may affect their legal right to improve the property — a question upon which we need not speculate in the absence of definite proof. Second, if the appellants have, for ezample, a vested one-fourth interest which will become an estate in possession upon Mrs. Sheppard’s death, it would be inequitable to reimburse them in full for improvements which are partly theirs.

This question of the reversion seems to have been overlooked by the parties in both courts and of course was not called to the chancellor’s attention. In this situation, where by common inadvertence an issue is not fully developed, it is our practice in equity cases to remand the case for further proof. Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728. We therefore set aside the award of improvements and remand the cause upon that issue.

MoFaddin, J., is of the opinion that the entire suit is premature so long as Kate Anthony Sheppard is living.

Seamstek, C. J., not participating.


text:
    Silvey v. Steele.
    5-662
    278 S. W. 2d 662
    Opinion delivered May 9, 1955.

      Keith & Clegg and Wright, Harrison, Lindsey & Upton, for appellant.

      Denman & Denman, for appellee.
   Ward, J.

Appellant instituted this action in chancery court asking to be adjudged the owner of an undivided one-third interest in certain oil and gas holdings which were claimed and held by Charles F. Steele and Amos T. Hutchinson, and asking the trial court to declare that Steele and Hutchinson in fact held one-third of said oil and gas holdings in trust for him. Appellant based his action on an alleged oral agreement between him and Steele whereby appellant was to secure certain correction deeds and certain mineral leases and Steele was to give him the said one-third interest. Steele, emphatically denying any such oral agreement, admits that appellant did considerable work of the nature above stated for him and Hutchinson but contends that he and Hutchinson have fully paid appellant for all such work.

The trial court held that the testimony was inadequate to support appellant’s claim, and the essential question presented to this court concerns the weight and sufficiency of the evidence.

Preliminary statement. Since the testimony is voluminous and the varied activities of the parties were somewhat complicated, yet have a potential significance to the stated issue, it will be helpful to give a general background picture.

The oil and gas holdings of which appellant seeks an undivided one-third interest pertain to only 22 acres of land, but the bulk of the work which he did in securing leases and correction deeds affected the entire 116% acres.

In Section 8, Township 15 South, Range 22 West, there is a tract of land consisting of 116% acres known as the “Milwee Estate.” For convenient reference this tract of land is divided in this manner: 1. 70 acres consist of the East Half of the SE% of the SW% less 10 acres squarely off of the north side thereof; 2. 5 acres consist of the East Half of the 10 acres excepted above; 3. 5 acres consist of the West Half of the 10 acres excepted above; 4. 17 acres join the two 5 acre tracts on the north and is in the shape of a parallelogram. This tract may also be described as all of the South Half of the SE% of the NW[4 except 3 acres squarely off the north side thereof; 5. 19% acres lie west of the 70 acre tract and the West 5 acre tract.

It appears that Charles F. Steele and Amos T. Hutchinson are associated in the oil and gas business and have been for about 10 years prior to this litigation. For the purpose of this opinion it is not necessary to refer to appellee, Minnette Hutchinson, hereafter. She is the wife of Amos T. Hutchinson and was made a party because she had some interest in the leases, nor is it necessary to refer to Berry Asphalt Company which was made a party, because its interest will not be affected by the outcome of this litigation. Mr. Hutchinson is a non-resident and apparently is counted on to furnish the money for drilling and leasing operations. Appellee Steele apparently is a man of small financial means who has vast knowledge and experience in the oil and gas business. He is advanced in years and was in very poor health during the whole period with which we are concerned here. Apparently it was his job to do the ground work for Hutchinson. He stated on one occasion that he wrote two letters a week to Hutchinson over a period of 5 years. Appellant Silvey is a resident of Arkansas, of good reputation and apparently has had experience in dealing with other people in securing oil and gas leases. The land covered by the oil and gas leases involved in this litigation consists of the 17 acre tract and the West 5 acre tract.

On January 1, 1952, appellees Steele and Hutchinson owned, or thought they owned, all of the oil and gas leases on the disputed lands except a 1/45 interest which was later secured by Silvey. They also had oil and gas leases amounting to a considerable interest in all of the 116% acres. It developed that it was necessary to obtain certain correction deeds and to obtain certain oil and gas interests before it would be practical to drill on any of the land. Since Steele was physically unable to do this work he enlisted the help of Silvey. Silvey says he and Steele had two separate and distinct agreements, and, for the purpose of this opinion, we will treat them as such.

First agreement. There is not much if any dispute concerning the first agreement. On or about January 1, 1952, it appeared to Steele that a reasonable amount of work would clear up the lease situation and he had an agreement with Silvey to do this work for him. After some disagreement it was finally decided that Silvey should receive for his work a 1/96 (of %) interest covering the entire 116% acres. Silvey completed this work within 3 or 4 months and he was given an assignment of a 1/96 interest covering all lands. Silvey has this interest and is now drawing remuneration as a result of wells having since been drilled.

Second agreement. Apparently during the time that Silvey was working under his so-called first agreement the abstract of title to the “Milwee Estate” was being examined by Mr. Steele’s attorney, Charles H. Tompkins. As a result of this title examination Mr. Tompkins discovered that certain correction deeds would have to be obtained to perfect the title to the lands, and that there was a large amount of so-called splinter leases or interests outstanding on the lands. It was recognized that the work required by the attorney must be done before it would be practical to start drilling operations, and it was also apparent that it would necessitate considerable work on the part of someone to meet the attorney’s requirements. This information was made known to Steele about the time that Silvey had completed his work under the first agreement. It is not disputed that Steele [and Hutchinson] desired and expected Silvey to do this work. The terms of the agreement under which Silvey undertook and did the required work are in dispute and form the basis of this lawsuit. Silvey has one version of the understanding or agreement and Steele has an entirely different version.

Silvey’s understanding of the agreement. Generally speaking Silvey contends that he had a definite oral agreement with Steele to do the work required by Mr. Tompkins whereby he, Steele, and Hutchinson would all be equal partners in all of the leases covering the entire 116% acres of land, or, in other words, that he, Silvey, would receive for his work one-third of the oil and gas leases on all of the “Milwee Estate.” It is not disputed that Silvey worked many months in accomplishing the work he did or that he did a good job. The record shows that Steele and Hutchinson have assigned to Silvey a one-third interest in the 70 acre tract and the 19% acre tract. This suit is an effort by Silvey to obtain a one-third interest in the 22 acre tract. It should be stated here that the East 5 acre tract is not involved in this suit. Silvey admits that Steele had begun drilling a well on the East 5 acre tract before he performed his first agreement and that he at no time claimed any interest in that tract. Actually then, Silvey only claimed as to 111% acres.

Appellees’ understanding of the agreement. Again generally speaking, Steele denies emphatically that he made the agreement alleged by Silvey, and states that the understanding which he had with Silvey was substantially as follows: At no time did he agree to give Silvey a one-third interest in the 22 acre tract because, as he says, he already had that land under lease and did not contemplate much difficulty in clearing the title and lease situation as to that land. He admits that Silvey wanted an additional interest to compensate him for the extra work required by Tompkins and that consequently he (Steele) promised and did give him a one-third interest in the 70 acre tract and also the 19% acre tract.

There are certain facts and circumstances disclosed by the record which each side points to as indicating substantiation for each respective contention.

Appellant points out. (a) Since work under the first agreement had been completed and he had been paid therefor by the assignment of a 1/96 interest in all of the “Milwee Estate” lands, appellant says that it is unreasonable to suppose that he would undertake and perform the enormous amount of work required by Tompkins without requiring a one-third interest in the leases covered on all of the lands, and that it is significant that much of the work performed by him related to the 22 acres in question. Many of the leases which he obtained from the Milwee heirs included the said 22 acres as well as the 89% acres.

(b) On January 19, 1953, Tompkins wrote a letter to Steele, enclosing a certain assignment covering the 19% acre tract, in which he indicated it was his understanding that Silvey owned an undivided one-third of the leasehold interest in the “Milwee-Estate” lands. It is significant, appellant says, that appellees, having thus been put on notice of Silvey’s claim, made no protest at the time or at any time thereafter, and that it is also significant that Steele did not remember receiving this letter.

(c) Appellant says that Steele claims that he did not agree to give appellant a one-third interest in any of the lands until July, 1953. Therefore, says appellant, Steele’s testimony cannot be reconciled because the letter just referred to above indicates that Steele must have known about appellant’s claim of a one-third interest as early as January 19, 1953.

(d) A large number of the leases secured by Silvey were taken in his name — later assigned to appellees.

Appellees point out. (a) Appellees acquired the original leases on the “Milwee Estate” and had to a large degree secured all leases on the 22 acres before Silvey entered the picture. Appellee Hutchinson was looked to as the man to furnish the money to pay for leases, attorney fees and operational expenses, and Steele states that he paid $1,700.00 to keep liens from running against the leases so that Hollyfield-Warren could drill a well on the 70 acres.

(b) All parties including Silvey knew that the 22 acre tract was the most valuable and Silvey admits that on one occasion appellees refused to give him any interest in the 17 acre tract.

(c)While it is true that Silvey took leases in his name Steele gave him instructions not to do so and in any event the leases were assigned by Silvey to appellees.

(d) Silvey admits he knew that appellees assigned certain leases for the drilling of a well on the 17 acre tract and that he did not make any claim for his one-third interest at the time.

(e) Mr. Tompkins stated that he did not know what the trade was between Silvey and appellees and that it was none of his business, although he knew they had some kind of an agreement.

(f) Several letters written by Steele to Hutchinson were introduced in evidence which, appellant agrees, are competent. These letters indicate Steele was unwilling to let Silvey have any interest in the disputed lands on January 10, 1952; January 20, 1952, Silvey was not satisfied, and Steele said “to stop where he was if he was not satisfied,” but Silvey said he would go on through with it; January 31, 1952, Steele said that he was sorry that he hired Silvey to get leases on the 70 acre tract and the 19% acre tract and that Silvey wanted to buy an interest in the 22 acres because he realized “this is the high point,” but Steele refused; on March 10, 1952, Steele wrote that Silvey “is never satisfied with what he is getting — I pay no attention to him any more.”

(g) On one occasion after appellant claims the second agreement was made Steele and Silvey were present when Hollyfield-Warren were attempting to locate a well just south of the East 5 acres and Fred Forest, a witness for appellees, was asked, “Q. Did you hear any discussion between Mr. Silvey and Mr. Steele as to ownership of two tracts, North tract and South tract?” He answered, “I heard Mr. Silvey say it did not make any difference and Mr. Steele said ‘Yes it does, I am not going to have that that close.’ This is mine and that is yours and we are not going to drain my oil with that.”

(h) Raney Ellis, age 82, a witness for appellees, stated that he was at Mr. Steele’s home in July of 1953 when Silvey was there, and he heard Steele promise Silvey one-third interest in the 70 acres and one-third interest in the 19% acres. "Witness stated that Silvey was well pleased.

(i) Billy D. Stroups, a witness for appellees, stated that he lived with Mr. Steele during the first two or three months of 1953 and during July and August of 1953; he was in Mr. Steele’s house on the occasion mentioned by Raney Ellis and he heard Silvey and Steele talking; that Silvey indicated he didn’t think he was getting enough for his work; that Steele gave him a 1/96 of the “Milwee Estate” land; but that he didn’t hear Steele say anything to Silvey about a one-third interest.

. It can be readily seen from the above that much of the testimony is in hopeless conflict and much of it lacks clarity. One difficulty in trying to determine exactly which view the record substantiates is that most of the facts and circumstances relative to the dealings between Silvey and Steele are consistent with Silvey’s understanding of the agreement and also consistent with Steele’s understanding. On the one hand it seems probable that since Steele and Hutchinson had been working together for so many years, they would not readily take a third party into full partnership. It is equally understandable, and the record shows, that Silvey desired to have a one-third interest in all of the lands, and it is not denied that he did a difficult job well. On the other hand the record shows that Silvey is now receiving, as a result of his work, something like $500.00 a month and it appears likely he may receive more in the future. It is recognized, of course, as stated, by the chancellor, that we are not here concerned with the amount of work done by Silvey except in so far as it may shed light on the agreement. Perhaps one of the most significant circumstances tending to corroborate Silvey and to discredit appellees’ testimony generally, is the letter written by Tompkins on January 19, 1953, in which he, to some extent, put Steele on notice that Silvey ivas claiming a one-third interest in all of the land, and which suggests the one-third interest had been discussed at that time. On the other hand it must be recognized that this does not constitute substantive testimony that Steele consented to such an arrangement. Tompkins admits that he didn’t know what the agreement was between Silvey and Steele and it will be presumed that he got his information regarding the matter from Silvey, which of c.ourse could not bind Steele. 'It is possible also that Steele, having read the letter, concluded that it did not necessitate a positive denial on his part. Moreover we are’not sure that Steele fixes July 1953 as the first time a one-third interest for Silvey was mentioned. One time Steele did fix this date, but at another time he said it was July 1952 — it’s possible the first statement was inadvertently made. It is noted also that appellant says the date cannot be determined, and the fact that one witness heard the conversation [about the agreement in 1953] does not necessarily preclude previous conversations of a «similar nature.

We are impressed with the exhaustive and apparently conscientious effort put forth, by the chancellor, reflected in a-lengthy and comprehensive written statement, to arrive at a just determination. It was his opinion that the testimony failed to meet the burden imposed by law upon.Silvey to prove he had an agreement with Steele to receive a one-third interest in the leases covering all the lands.

After a careful consideration of all of the testimony we cannot say that the conclusion reached by the chancellor is against the weight of the testimony, and therefore the decree of the trial court is sustained.

Seamster, C. J., not participating.


author: Bobinson, J.

text:
    Cannon v. Ferrell.
    5-669
    278 S. W. 2d 652
    Opinion delivered May 9, 1955.

      Frank 0. Douglas, for appellant.

      James M. Gardner, for appellee.
   Bobinson, J.

The point involved here is whether a widow may, for the first time since the death of her husband thirteen years ago, claim as a homestead property on which neither she nor her husband was living at the time of his death, with the evidence leading to the conclusion that she had previously elected to take other property as her homestead.

Mr. and Mrs. W. E. Cannon were married in 1932 and moved to his home on a forty acre farm, which is now the subject of this litigation. Subsequently, Cannon’s health failed and he was unable to carry on the farming operation. Mrs. Cannon bought a one acre plot of ground; they moved to it in 1936 and rented their farm. In 1941, Mr. Cannon died. Through the initiative of Mrs. Cannon, an administrator was appointed. No claim was made at that time that the forty acres constituted a homestead.

The administrator collected the rent each year and paid Mrs. Cannon one-third of the money, with the balance, less expenses, going to the children of Mr. Cannon by a former marriage. The administration was closed in 1952, but the person who had acted as administrator continued to collect the' rent- as agent of the parties. In 1954, he came to the conclusion that the rented farm property had been Cannon’s homestead, and that Mrs. Cannon was entitled to all of the rent. He therefore refused to pay any of the 1954 rent to the heirs of Cannon, and they subsequently filed this suit alleging that they were entitled to their two-thirds share. Mrs. Cannon answered and claimed the property as a homestead. The Chancellor held that her claim was barred at that late date, and she has appealed.-

Assuming that the property did constitute Cannon’s homestead, even though he was not actually living on it at the time of his death, and further that Mrs. Cannon could have claimed the property as a homestead immediately following his death, still we do not reach the conclusion that, under the circumstances existing here, she can claim the property as a homestead thirteen years after the death of her husband.

At the time of Cannon’s death, he and his wife were living on her property which she could also claim as a homestead. Gibson v. Barrett, 75 Ark. 205, 87 S. W. 435. She continued to live there for’ thirteen years without making a claim of any other place as her homestead. She cannot have two homesteads. Grimes v. Luster, 73 Ark. 266, 84 S. W. 223, 108 Am. St. Rep. 34; Van Pelt v. Johnson, 222 Ark. 398, 259 S. W. 2d 519. She may, however, make an election as to the place she will claim as a homestead. Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S. W. 2d 1099. By continuing to live on her own property for thirteen years without claiming any other property as a homestead, it appears that long ago she selected as her homestead the property where she has lived for so many years.

Affirmed.

Seamster, C. J., not participating.


author: Robinson, J. Eobinson, J.

text:
    Saad, Executor v. Arkansas Trust Company.
    5-674
    278 S. W. 2d 676
    Opinion delivered May 9, 1955.
    [Supplemental opinion on rehearing delivered June 27, 1955.]

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

      Wood, Chesnutt & Smith, for appellee.
   Robinson, J.

This is an appeal from tbe allowance of a $5,000.00 executor’s fee and an $8,500.00 attorneys’ fee in tbe administration of tbe estate of DiMitry G. Saad.

Saad died testate about the first of January, 1952, and appellee, Ai’kansas Trust Company, was named executor. Appellees, Wootton, Land and Matthews, were employed as attorneys for the executor.

The deceased had operated a department store in the city of Hot Springs. An inventory filed shows personal property valued at $77,977.98 and real estate valued at $66,000.00. Claims against the estate were allowed to the extent of, about $50,000.00; the widow elected to take against the will. The homestead valued at $18,-000.00 was part of the real property.

After everything was considered, it was decided advisable to operate the store. The executor did so under orders of the court for about a year, during which time about $158,000.00 passed through the hands of the executor.

Appellant claims that the personal property amounted to $73,720.98 and, based on this figure, the executor is entitled to a fee of only $2,502.87 and that the attorneys’ fee should not be more than $1,500.00.

Ark. Stats., § 62-2208, paragraph (a), provides: “The personal representative shall be allowed such compensation for his services when and as earned, as the court shall deem just and reasonable, not to exceed, except as provided in sub-section b hereof, ten percentum of the first one thousand dollars, and five percentum of the next four thousand dollars, and three percentum of the balance of the value of the personal property passing through the hands of the personal representative, provided that compensation shall be allowed only on the value of such property as shall have been fully administered.”

Paragraph (b) provides that the executor may be allowed an additional sum for work done in connection with the real property.

At first glance, the fees allowed by the Probate Court may appear to be a little high. It is realized, however, that the Probate Court is in a much better position to properly evaluate the services rendered than is this court, and when the work done by the executor and attorneys, as revealed by the record, is studied, we cannot say that the Chancellor abused his discretion in the allowance of fees.

In Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12, the court said:

“Being familiar with the services rendered, the judge, in fixing the allowance, could act upon his own knowledge of their value and we would not overturn his findings thereon unless clearly erroneous.”

In Lilly v. Robinson Mercantile Company, 106 Ark. 571, 153 S. W. 820, it is said:

“The court was sitting as a jury in the determination of the matter and took into consideration the facts of the service performed, as well as the interested attorney’s opinion of the value thereof, but he was not required to lay aside his own general knowledge and ideas of such service and the value thereof and should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinion expressed and in no .other way could he have arrived at a just conclusion.”

Appellant contends that the executor’s fee should be limited to the original personal property inventory as adjusted as a basis for computing the fee, and that a proper construction of the statute fixing the executor’s fee would so limit it. They further contend that if the fee can be based on the amount of money passing through the executor’s hands when a business is being operated and merchandise is being bought and sold, it would be entirely possible for the whole estate to be consumed in fees. It will be recalled that the court is not required to allow thé executor a minimum sum; only the maximum is limited and it cannot be anticipated that the court would allow an unreasonable fee or one not earned in' good faith.

In this instance, the executor actually operated the store for about a year. About $158,000 passed through its hands. It is .true that an accountant was employed at a salary of $75.00 per month plus a fee of $1,000.00, but his work consisted principally of bookkeeping. Of course a business of this kind would not operate satisfactorily without a bookkeeper. There were also other employees.

In so far as the executor is concerned, it appears that $5,000.00 is not too much to be paid for the management and operation of a store the size of the one involved for a period of a year, not considering the tremendous amount of other work that was also done.

It can be seen that there was hardly a day during the two year period that the executor and the attorneys did not have to perform some duty in connection with the administration of the estate. A will contest was filed and, although the cause did not actually go to trial, the Probate Judge was in a position to know the work the attorneys for the executor did in connection with preparing for the trial. It may have been due to their diligence and hard work that the contestants did not press for a trial. An alleged holographic will was also filed for probate. The record shows that the attorneys for the executor Avere prompt in looking into this matter, and after they filed a motion for an examination of the alleged will by experts it Avas withdrawn.

It is contended that the attorneys’ fee is high when the value of the estate is considered. The value of the subject of the litigation, hoAA7eAmr, is only one factor in arriving at a reasonable attorney’s fee. The actual hours spent in working on the litigation are also important, and in this particular case fifty-nine separate motions, petitions, reports and orders appear on the docket. The training, skill and diligence of an attorney should not be ignored. When all of these matters are taken into consideration, we do not believe an $8,500.00 fee is unreasonable.

In Sain v. Bogle, 122 Ark. 14, 182 S. W. 515, the court said:

“We think it fairly deducible from our own cases and from the case note above referred to that in determining what is a reasonable attorney’s fee it is competent and proper to consider the amount and character of the services rendered, the labor, time and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing of the attorneys.” ' .

In Rachels v. Garrett, 153 Ark. 343, 240 S. W. 1071, the court said:

“The value of the plaintiff’s services in the instant case is a matter with which the chancellor must necessarily have been familiar. The whole proceedings regarding the insolvent bank were before him. When the court is informed of the nature and extent of such services, its own experience furnishes it with an important element necessary to fix their value.”

A lawyer, energetic and possessed of integrity and ability, has spent many long years preparing himself to look after his clients’ interests in the best manner possible. He is entitled to collect fees commensurate with the position of responsibility and trust which he holds, and he is entitled to fees that will enable him to live with the dignity expected of him by the public in general.

Affirmed.

Justices George Eose Smith and Ward dissent.

Seamster, C. J., not participating.

ON EEHEAEING

Eobinson, J.

On rehearing, we have reached the conclusion that the executor’s fee allowed by the trial court should be reduced. It appears that the actual operation of tlie store was under the management of Mr. Otis Honeycutt; that he and Mr. Oscar W. Luebben, a Certified Public Accountant, were both paid a salary and attended to practically all of the details; and that the work done by the executor was not substantially greater than the usual and customary duties of one acting in that capacity.

The first inventory filed by the executor shows a personal property estimate of $77,977.98; we believe that this is a fair value of the personal property actually administered by the executor. On this valuation, the executor’s fee would be limited to 10% of the first thousand, 5% of the next four thousand, and 3% of the balance. Ark. Stats., § 62-2208. Figured on this basis, the executor would be entitled to a fee of $2,489.34. In addition, we believe the executor is entitled to a fee of $250.00 for work done in connection with real property. Ark. Stats., § 62-2208(b). The total executor’s fee would then be $2,739.34.

The petition for rehearing is granted to the extent of reducing the executor’s fee as indicated.


author: J. Seaborn Holt, J. Bobinson, J.,

text:
    McDonald v. State.
    4804-5
    279 S. W. 2d 44
    Opinion delivered May 16, 1955.

      A. E. Johnson, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   J. Seaborn Holt, J.

A jury found appellant guilty of the crime of rape (Ark. Stats. 1947, § 41-3401) and assessed his punishment at a term of life imprisonment in the state penitentiary. From the judgment is this appeal.

Case No. 4805, consolidated with this appeal (Case No. 4804), relates to a motion for a new trial based on alleged newly discovered evidence.

— 1 —

For reversal appellant first questions the sufficiency of the evidence, — Assignment 1 — (a), (b), (c). The prosecuting witness is appellant’s thirteen-year-old daughter who was in the ninth grade in school. She testified that in early July, 1954, at about 1:30 P. M. her father, .. . came in and he said he wanted to take us berry nicking, and I told him I didn’t feel like going because I kind of thought that was what he was going to do.” A short time before, appellant in their home got in bed with the prosecutrix and tried to have intercourse with her. “Q. However, he didn’t have intercourse with you on that day? A. No, sir. Q. He didn’t force you to have intercourse with him? A. He tried to, but I jumped out of the bed, and he told me he would knock my head off for acting so smart with him about it.” Continuing her testimony: “I went with him and the three little kids were with us. ("Witness begins crying.) And so we got out there, and he told the little kids we were going to look for berries. I told him I didn’t want to go — I wanted to stay in the truck, and he made me go with him, and so I got down, and I had on blue jeans, and he made me pull them off and he raped me, and we went back to the truck. He tried to start it and it wouldn’t start and so he made me go back with him again, and when we came back, it still wouldn’t start, and he made me go back the third time. . . . Q. Each time he carried you back in the woods, did you take off your clothes? A. Yes, sir. Q. And you put them back on each time when he had finished? A. Yes, sir. Q. What is your feeling toward your father, Miss McDonald? A. Well, I don’t want ever to have to live with him again. Q. Isn’t it true that you strongly dislike your father? A. Yes, sir . . . And when we got back to the truck, he pulled the truck and we started home, and we got to a little store on Highway 67, and he bought the children some ice cream, and we went on home. Q. Where was your mother? A. She was there at the house. We tried to get daddy to let her go with us and he wouldn’t do it. He told her there wasn’t any use, it wasn’t any of her business — that she didn’t need to go. Q. Did you tell your mother what occurred? A. No, sir, not then. Q. When did you tell her ? A. That night. He told me if I told her, it would be too bad for me. He told me I had better not tell her. . . . Q. Do you know what intercourse is? A. Yes, sir. Q. Did he have intercourse with you? A. Yes, sir.” The prosecutrix was afraid of her father. She testified as indicated that she resisted his advances, that he chased her and brought her back and raped her forcibly and without her consent.

Appellant denied his daughter’s accusations, or that he had ever tried to have illicit relations with her, however, the jury, which was the sole judge of the testimony and of the weight to be given to it, evidently chose to believe the child’s version of what happened. When we give to her testimony and all the evidence in the case its strongest probative force in favor of the State, as we must, we cannot say that it is not substantial and legally sufficient to support the jury’s verdict and judgment.

Her testimony standing alone was legally sufficient to convict. It was not necessary that it be corroborated. We held in Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747 (Headhote 4): “Since one of the essential elements in the crime of rape is that the act must be committed forcibly and against the will of the prosecutrix, she is not an accomplice and corroboration of her testimony is not necessary.” The words “forcibly ravish a female” mean that the act “was done ‘against the will’ of the female or without her consent, which has the same meaning.” State v. Peyton, 93 Ark. 406, 125 S. W. 416, 137 Am. St. Rep. 93.

The lesser offenses of assault with intent to rape, and carnal abuse of a female under the age of 16 years, were properly presented to the jury by the court, but, as indicated, the jury elected to find appellant guilty of the greater offense of rape.

— 2 —

Appellant in Assignment 2 argues that the State erred in offering as a witness appellant’s wife knowing that she could not be compelled to testify against her husband (by virtue of §§ 43-2019 — 20), and that this offer prejudiced the jury against him. We do not agree.

On this issue the record discloses: “Essie Marie McDonald, being called as a witness for the State, and after having first been duly sworn, was seated in the witness chair. By the Court: Let the record show Essie Marie McDonald, wife of the defendant, is called. Do you have a motion, Mr. Lowe? (Discussion off the record.) By the Court: The Court will hold that Mrs. McDonald is incompetent to testify. By Mr. Lookadoo: I want to make an objection to this later. By the Court: Mrs. McDonald, you may stand aside and go back to the witness room. Gentlemen of the Jury, the witness who is leaving the stand is the wife of the defendant, and the Court has held that a wife cannot testify against her husband except where she has been personally injured; the Supreme Court has held that this does not include children. All right, call your next witness. (Witness is excused.) ”

It appears that appellant made no objection to the court’s action and he is, therefore, in no position to complain for the first time here. Lewis v. State, 202 Ark. 6, 148 S. W. 2d 668.

— 3 —

In Assignment 3 appellant contends that he is entitled to a new trial on the grounds of newly discovered evidence. He says: “That defendant has obtained newly discovered evidence that could not have been presented to the court at the trial on his behalf and in his defense at the original trial.

“One. Because, same is in the nature of medical evidence and was not made available to him or his Attorney at time of trial, nor could not have been found at the time because of concealment. ’ ’ Our rule is that one relying on newly discovered evidence for a new trial must show: “Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. ’ ’ Ark. Stats. 1947, § 27-1901.

In this connection appellant argues that Dr. H. H. Holt made a physical examination of the prosecutrix after the trial which revealed that her hymen was still intact and that this testimony was concealed from the-appellant. To secure a conviction it was not necessary to prove tliat the hymen had been broken. ‘ ‘ ‘ The carnal knowledge that is required to constitute rape must be a res in re, but to no particular depth,’ and the hymen need not be ruptured nor the body torn.” Poe v. State, 95 Ark. 172, 129 S. W. 292. The record shows that the attorneys for appellant at the trial in effect admitted to the trial court during consideration of appellant’s motion for a new trial that they knew that a medical examination had been made of the prosecutrix prior to the trial but since it was made about thirty days after the alleged rape, they had concluded it would be of no material value. On this issue the court commented as follows: “The defense attorneys were aware that a medical examination had been made, and they were aware of that fact prior to the day of the trial, and that after consultation with a qualified neurologist, they concluded that the examination of the examining physician would be of no material value, particularly in light of the approximately 30 days which had elapsed between the date of the alleged act and the date of the examination . . . the attorneys for the defendant had unrestricted access to the prosecuting witness, and the mother, Mrs. McDonald, and that they questioned those parties at length.” We hold that this proffered medical evidence failed to meet the above statutory requirement for admission. French v. State, 205 Ark. 386, 168 S. W. 2d 829.

Another doctor, Henry, also testified at the hearing on the motion for a new trial in effect that to have intercourse the hymen must be perforated. His testimony was based on hypothetical questions. He made no physical examination of the prosecutrix and admitted that he had never seen her. There was no proper showing that his testimony could not have been obtained by due diligence prior to the trial.

Three ladies also testified, at the hearing on the motion for new trial, in effect, that about January 27, 1955, about six months after the alleged rape, that they went to appellant’s home and in the presence of the prosecutrix had asked her mother whether the appellant had had intercourse with the prosecutrix and that Mrs. McDonald replied that appellant had tried to but did not succeed, and that her daughter did not know the difference, and that she took her to a doctor.

Appellant argues that the above statements of Mrs. McDonald were admissible for the reason so he says: “The mother can make statements for the daughter in her presence, if the daughter is silent and stands by, and makes no effort to refute them. What were the statements made, that were offered? Those are declarations against interest, as she is an interested party, also the State.” As we view the testimony of those ladies its effect would be to discredit and impeach the testimony given by the prosecutrix which the evidence shows she had never recanted. Such testimony is not a ground for a new trial. “A new trial will not be granted for newly-discovered evidence which is merely cumulative of that offered on the trial or which tends to impeach the credibility' of the State’s witnesses.” Norrid v. State, 188 Ark. 32, 63 S. W. 2d 526, Headnote 4. See also, Edgeman v. State, 183 Ark. 17, 34 S. W. 2d 753, and Reeder v. State, 181 Ark. 813, 27 S. W. 2d 989. So we hold that the court was correct in overruling the motion for a new trial on the ground of newly discovered evidence.

Finding no error, the judgment is affirmed.

Bobinson, J., dissents.

Chief Justice Seamstbr not participating.

Bobinson, J.,

dissenting. I don’t suppose that ever before in the entire history of civilized society has a human being been imprisoned for life on such weak and unsatisfactory evidence as that upon which the defendant was convicted in this case.

The thirteen year old daughter’s testimony is uncorroborated by substantial evidence or circumstances of any kind. Although corroboration of the testimony of the alleged victim is not necessary in a case of this kind, lack of corroboration should be considered in passing on the motion for a new trial on the ground of newly discovered evidence. The trial court appointed two lawyers for the defendant, hut they took no part in the case subsequent to the trial. The attorney who represents appellant on appeal filed a motion for a new trial alleging, inter alia, newly discovered evidence.

At the trial, the prosecutrix testified that her father raped her three times within a period of about 45 minutes. Her younger brothers and sisters were nearby; some Negroes were also close to the scene. There is no evidence that anyone heard an outcry, nor does the prosecutrix testify that she made an outcry. The rape is alleged to have occurred on the first day of July, 1954. Prosecutrix says she told her mother about it that night, yet no charges were filed against the defendant until two months later on August 30, 1954.

The testimony of the prosecutrix is not convincing. She admitted that she dislikes her father and that such feeling existed a long time before the rape is alleged to have occurred. Her testimony that her father “raped” her is a mere conclusion on her part, since no showing is made that she knows the meaning of the word rape. The following is a question asked her and the answer she gave:

(‘ ‘ Q. Wanda, I am sorry to have to ask you this, but did he penetrate you with his private organs? That is the question I want to ask you, for the jury to hear. Do you understand what I asked?

“A. No, sir.”

It can be seen that two questions were propounded to the witness as one question. Her answer was “no”. She could have meant that he did not penetrate her, or she could have meant that she did not understand the question. In the light of the evidence developed on the motion for a new trial on the ground of newly discovered evidence, it would appear that when she said “no”, she meant that there was no penetration. As heretofore stated, the attorney who represented the defendant on the motion for a new trial on the ground of newly discovered evidence did not represent him at the trial. This attorney discovered that prior to the trial, the State had the prosecutrix examined but did not produce the examining physician as a witness. This physician was called as a witness on the motion for a new trial, and testified that he examined the prosecutrix on the 4th day of August, almost a month before the defendant was charged with-the offense. The doctor stated: “There was no physical evidence that this girl, Wanda Lou McDonald, had ever experienced sexual intercourse as we commonly speak of it.” He testified further:-

“Q. Doctor, in that examination, did you find the state of the hymen at that time?

“A. Yes, sir.

“Q. What was the state of the hymen?

“A. The hymen was imperforate.

“Q. Imperforate — what does that mean?

“A. It means that it had never been perforated. Its hymenal opening was annularial in shape — that means circular — and less than one c.c. in diameter. One c.e. is one-third of an inch. It would not admit the tip of my little finger.”

The doctor also testified that there was no evidence of trauma or disease. On cross-examination, he stated:

‘‘Q. Doctor, isn’t it true that this- — it’s possible you could be mistaken as to whether or not this girl had had intercourse with her father or not, from the examination you made? I just ask you if it is possible that you could be wrong?

“A. I don’t see how it could be possible, because on August 4, this child would not admit without severe pain — I caused her some pain in an effort to examine her — and she wouldn’t admit anything larger than an ordinary cigarette.

“Q. Than an ordinary cigarette; isn’t it true that at different times of the month, there is a difference in the expansion of a girl — a difference in the expansion?

“A. No, there is no change in it; I might add that there is quite a wide variation of the size of the hymenal opening in different individuals.”

It was further shown in the hearing on the motion that, subsequent to the arrest of appellant, the mother of the prosecutrix stated in her daughter’s presence that the child was not raped but she did not know the difference. The prosecuting witness was standing there when her mother made this statement and did not deny what the mother said.

When one of the attorneys who had represented the defendant at the trial was called as a witness on the motion for a new trial for the purpose of showing whether he knew that the prosecutrix had been examined by a doctor prior to the trial, he refused to testify. The court did not compel him to do so. In any event, a jury passing on the guilt or innocence of the defendant should have had the benefit of the testimony of the doctor who made the physical examination subsequent to the time the rape is alleged to have occurred.

Therefore, I would grant á new trial on the ground of newly discovered evidence.