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a grant from the Governor of New Mexico, who, , county clerk of Yell county, in which the under the laws then in force, had authority to lands were situated, that the N. W. 14 of the make the grant. However, we do not wish to be understood as undervaluing the fact of a

N. E. 44, or the land in controversy, had possession so long and uninterrupted as disclos- been sold to Eppy White and was subject to ed in this case. Without going at length into taxation. The date of this certificate is 1868. the subject, it may be safely said that by the

Therefore we are of the opinion that the weight of authority, as well as the preponderance of opinion, it is the general rule of Ameri- circuit court might reasonably have inferred can law that a grant will be presumed upon that the record of the state land office did proof of an adverse, exclusive, and uninterrupt- | not show, as a matter of law, that the land ed possession for 20 years, and that such rule will be applied as a presumptio juris et de jure, in controversy had not been sold to Eppy wherever, by possibility, a right ma be acquired White. When we consider the further fact in any manner known to the law. 1 Greenleaf that the land has been in possession of Eppy Ev. (12th Ed.) & 17; Ricard v. Williams, 7 White and his grantees ever since the year Wheat. 59, 109 [5 L. Ed. 398];, Coolidge v. Learned, 8 Pick. [Mass.] 504. Nothing, it is 1857, and that these parties have cleared the true, can be claimed by prescription which owes land, made improvements on it, cultivated its origin to, and can only be had by, matter of it, and paid taxes on it, we think the circuit record; but lapse of time, accompanied by acts done, or other circumstances, may warrant the court was justified in finding that a grant jury in presuming a grant or title by record. had been made to Eppy White. In addition Thus, also, though lapse of time does not, of to this, Richard Ellison testified that he had itself, furnish a conclusive bar to the title of the sovereign, agreeable to the maxim, 'nullum seen, among the papers of his father, a deed tempus occurrit regi ;' yet, if the adverse claim to this land from the state to Eppy White. could have a legal commencement, juries are Eppy White and his grantees have been in the advised or instructed to presume such com exclusive and uninterrupted possession of the mencement, after many years of uninterrupted land for over half a century, and they are possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after all, except the defendant Laura West, now an indefinitely long continued peaceful enjoy-dead. She was too young to remember any. ment, accompanied by the usual acts of owner- thing about the original entry; and when all ship. 1 Greenl. Ev. § 45."

the facts and circumstances adduced in eri. The presumption of a grant from long dence are considered, we are of the opinion continued possession is one of fact, and it is that the court was justified in finding that for the jury or court trying the case to de

a grant of the land had been made by the termine the effect of the evidence in support state. of the presumption.

It follows that the judgment must be af[2] It is contended by counsel for plaintiff

firmed, that the records of the state land office conclusively show, as a matter of law, that no deed could have ever been issued by the state

CORNEY V. CORNEY. (No. 139.) to Eppy White; but we do not agree with them in this contention. It was admitted by (Supreme Court of Arkansas. Sept. 28, 1914.) the commissioner of state lands that there 1. EQUITY ($ 239*)-PLEADING-COMPLAINTwas some confusion from the records in his DEMURRER-ADMISSIONS. office as to whether the entry by Eppy White A demurrer to the complaint admits the was for the N. W. 44 of the N. E. 44 or the truth of the allegations thereof. N. E. 14 of the N. E. 44. It is true he states Dig. § 494; Dec. Dig. $ 239.*]

[Ed. Note.-For other cases, see Equity, Cent that in his opinion the letter “S” was placed on the N. W. 14 of the N. E. 44 by mistake, and 2. EQUITY (8 430*) --DECREE-VACATION FOB

FRAUD. should have been placed on the N. E. 14 of A decree of the Supreme Court will not be the N. E. 14. He gave his opinion that this vacated, on the ground that it was procured by was a mere clerical error, because there was fraud, based on the act of the successful party no other record in the land office tending to in surreptitiously, making a part of the record show that Eppy White had entered the land ments defamatory of the character of the de

on appeal a pleading, not filed, containing state in controversy; that, on the other hand, feated party, and thereby affecting her credibilthere was a record in the land office showing ity as a witness before the Supreme Court, that Eppy White had made application to lent pleading did not require a denial, and

where the matter complained of in the fraudu. purchase the N. E. 44 of the N. E. 14 and that could not have misled the Supreme Court. the same had been sold to him. He admits, [Ed. Note.-For other cases, see Equity, Cent. however, that it was the practice in the land Dig. $8 1034–1047; Dec. Dig. § 430.*] office to place the letter "S" on the original plat on the subdivision of land when it was

Appeal from Crawford Chancery Court; sold by the state and that pursuant to this

W. A. Falconer, Chancellor. custom the letter "S" was placed on the N.

Suit by Mary F. Corney against Robert B.

Corney. W. 14 of the N. E. 14. He also admits that

From a judgment for defendant, by reason of this confusion of the records sustaining a demurrer to the complaint, plainone of the clerks in his office sold the N.

tiff appeals. Affirmed. E.. 44 of the N. E. 14 of said section 6, to Mary F. Corney, of Little Rock, for appelOscar Winn. Then, too, the auditor of state lant. Robert L. Rogers and Vaughan & Aklands, pursuant to statute, certified to the lers, all of Little Rock, for appellee. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indeses

KIRBY, J. The history of this case is court reversing and vacating the decree of found in Corney v. Corney, 97 Ark. 117, 133 the chancery court setting aside the decree S. W. 813, and 108 Ark, 415, 159 S. W. 20. of divorce, because of the fraudulent falsifyIn the first of these cases the court reversed ing of the record of the case by the interpolaa decree vacating and setting aside a de- tion of the answer here, when none had been cree of divorce theretofore granted by the filed in the lower court—the complaint alCrawford chancery court to R. B. Corney leging that this answer is material, "in that against Mary F. Corney, appellant herein, it contains, among others, the following false holding that the fraud shown to have been and fraudulent statements referring to appracticed in procuring same was not a suffi- pellant derogatory to her character and credcient ground for vacation of the decree, and ibility"-setting out a page of highly denunthat the appellant herein was guilty of laches ciatory condemnation and villification of in waiting more than two years after the appellant; that these derogatory statements rendition of the decree, and until Corney as set out in the fraudulent answer did or bad married again, before proceeding to have might have influenced the Supreme Court it vacated. She thereafter filed a complaint in their decision of the case, being such as in the chancery court' of Crawford county, tended to show her unworthy of belief; that asking that the judgment of this court be because thereof her testimony in the lower reviewed and set aside, leaving the original court might have been given by the Supreme order and decree of divorce in full force, Court little or no weight. The complaint and alleging as ground therefor that the also alleges that her attorney, without any decree of this court had been obtain- knowledge of the fact that the answer had ed by fraud practiced by the success- not been filed in the lower court, and without ful party in surreptitiously introducing an any authority from her or knowledge on answer into the record of the case here that her part that he had done so, stipulated that had not been filed nor considered in the low- the answer should become a part of the recer court. A general demurrer was interposed ord of the Supreme Court. The demurrer, of and sustained to this complaint, and upon course, admits the truth of the allegations appeal the case was affirmed. Corney v. of the complaint, and the sole question for Corney, 108 Ark. 415, 159 S. W. 20. Appel- determination is whether its allegations are lant then instituted this suit in the court be sufficient to warrant the granting of the relow to vacate the former decree of reversal lief asked. by this court on account of fraud practiced

[2] No contention is made that any allegaby the successful party in obtaining it, and a tion of the complaint to set aside and vacate general demurrer was interposed to this com- the decree of divorce was admitted or estabplaint and sustained, and the case is here lished by the failure to answer, conceding on appeal.

that no answer was made, but only that the In 108 Ark. 415, 159 S. W. 20, on the last interpolated answer contained statements appeal, the court said:

so derogatory to and defamatory of the char"In order to show that the judgment of this acter of the appellant as tended to and might court was obtained by fraud, it is necessary to allege specifically what the fraud consisted of have affected her credibility as a witness and that it was material, so that it can be before the Supreme Court. The matter comseen that the judgment of the court was or plained of in the fraudulent answer is not might have been affected by it. Fraud is never such as would have required its denial by presumed, and must be specifically alleged and proved in order to entitle the complaining party a reply under our system of pleading, and to relief. The judgment of this court should could not have had effect to impose upon not be set aside merely because the answer was and mislead the Supreme Court in its dewrongfully put into the record, unless it be shown that it was material and had some bear cision of the cause before it, nor materially ing upon the decision of the case.'

to prevent a fair hearing and correct deter[1] The complaint herein includes sub-mination thereof. The case was heard, and stantially the allegations of all the other after careful deliberation the decree was recomplaints by appellant, reciting the wrongs versed by a divided court; the writer hereof suffered by her at the hands of the appel-concurring in Mr. Justice Hart's dissentlee, and the frauds claimed to have been ing opinion. The complaint makes no such practiced in the procuring of the divorce, the material allegations of fraud from which it rendition of the decree setting it aside, the can be seen that it had any bearing on the reversal of this decree by the Supreme Court, court's decision, or that its judgment was or leaving the decree of divorce in effect, as might have been affected by it. Its allegawell as the facts alleged in the first suit tions of fraud were insufficient, and the chanto set aside and vacate the decree of the cellor did not err in sustaining the demurrer Supreme Court, and charges fraud of appel- thereto. lee herein in procuring the decree of this The judgment is affirmed.

Appellant sued appellees alleging they were COLYAR v. LITTLE ROCK BOTTLING partners engaged in business in the city of WORKS. (No. 103.)

Little Rock, manufacturing and selling soda (Supreme Court of Arkansas. July 6, 1914.) pop and kindred articles, that plaintiff and 1. EXPLOSIVES ($ 9*)-PERSONAL INJURIES

her husband sell soft drinks in said city, and ACTIONS-PRIVITY.

that about October 21, 1913, they bought Where defendant sold soda pop, to be re- from the defendants a case of their goods, tailed in a business owned jointly by plaintiff and after same was delivered at her place and her husband, there was sufficient privity between plaintiff and defendant for her to of business she lifted one of the bottles from maintain an action for injuries received by the the case and was carrying it to the ice box, bursting of a bottle, though plaintiff might not and while so doing, in the exercise of due be a partner with her husband, and was merely care, the said bottle, without coming into conacting under his direction.

[Ed. Note:--For other cases, see Explosives, tact with anything, exploded and so injured Cent. Dig. 8 6; Dec. Dig. $ 9.*]

her left eye that it had to be removed, where2. EXPLOSIVES ($ 9*)-PERSONAL INJURIES— by she not only lost the sight of her eye, but

"ACTIONABLE NEGLIGENCE" WHAT CON- suffered great disfigurement and untold STITUTES. "Actionable negligence" being breach of

physical pain and mental anguish, and induty resulting in injury to some person to curred large expense for medical attention whom that duty is legally owing, a company and nursing. engaged in bottling soda pop and charged wa- A demurrer to the complaint was filed and ters is guilty of actionable negligence in overcharging the bottles in such a manner that they overruled, and upon motion appellant elected will explode, because it owes the duty of care, to proceed in her name alone; her husband not only to prospective purchasers, but to its having been joined with her at the instituemployés.

tion of the suit. [Ed. Note.-For other cases, see Explosives, Cent. Dig. 8 6; Dec. Dig. & 9.*

Appellees answered, denying the allegations For other definitions, see Words and Phrases, of the complaint, and stating that they purFirst and Second Series, Actionable Negligence.) chased the bottles used by them from a rep3. PRINCIPAL AND AGENT (8 177*)-NOTICE utable, well-known, and reliable bottle manTO PRINCIPAL-KNOWLEDGE OF AGENT. ufacturer, and filled them with due care, and,

The knowledge of an agent of a bottling if plaintiff was injured by one of them, it works that the bottles were so heavily charged that they burst without any other cause" is was not due to their negligence, but to that imputable to the bottling company.

of appellant in handling and using same. [Ed. Note.-For other cases, see Principal Appellant testified that she was engaged and Agent, Cent. Dig. $8 670_679; Dec. Dig. 8 in running a little grocery and confectionery 177.*]

store in the city of Little Rock, and that she 4. EXPLOSIVES ($ 9*)-PERSONAL INJURIES— handled cold drinks, and that the business LIABILITY-KNOWLEDGE OF DEFECTS.

Where a bottling company had knowledge was owned by herself and her husband; that that bottles in the past had broken by reason as she took a bottle of soda pop from the of being too heavily charged with gas, it is case in which it had been delivered to put liable for the injuries received by a purchaser of bottled goods upon the explosion of a sur- it in the ice box, having picked it up with charged bottle.

her right hand, and while in the act of put[Ed. Note: -For other cases, see Explosives, ting it in the ice box with her left hand, the Cent. Dig. $ 6; Dec. Dig. $ 9.*]

bottle exploded and put her eye out; that 5. EXPLOSIVES ($ 9*)-PERSONAL INJURIES— she handled the bottle carefully, and did not ACTIONS-EVIDENCE-SUFFICIENCY. In an action for injuries received by a

strike it against anything, yet it exploded, purchaser of soda pop upon explosion of a bot- and blew glass all over the floor where she tle, evidence of defendant's negligence in over- was standing. She testified that she had purcharging the bottle held sufficient to go to the chased this soda pop from appellees, and jury. [Ed. Note. For other cases, see Explosives, been delivered at the time of her injury. She

was taking it out of the case in which it had Cent. Dig. 8 6; Dec. Dig. $ 9.*] 6. EXPLOSIVES ($ 9*)-PERSONAL INJURIES

further testified that she had been engaged LIABILITY-DEFENSES.

in this business for some years, during which Where a bottling company purchased its time a number of bottles had broken, and bottles from a responsible manufacturer, and that sometimes these bottles would break in they were of the standard grade and quality, it is not liable for injuries received by a pur- the case, and at other times they would chaser of its goods upon the explosion of a break on the ice. bottle, which was properly charged, but con- A witness, R. E. Sallie, testified that he tained a hidden defect.

had worked for appellees for a period of 34 (Ed. Note. For other cases, see Explosives, Cent. Dig. $ 6; Dec. Dig. & 9.*1

years, during which time he had been en

gaged in the delivery of bottled drinks to the Appeal from Circuit Court, Pulaski Coun- appellees' customers, and that it was rather ty; Guy Fulk, Judge.

common occurrence for these bottles to Action by Rebecca Colyar against the burst while he was handling or hauling them, Little Rock Bottling Works. From a judg- and that he had had them burst on his wagon ment for defendant, plaintiff appeals. Re- without any cause of which he was aware, versed and remanded, with directions. and that some had exploded by being struck *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

course

against something, while others broke while of the complaint that the packing company he was handling them; that he had had cus- had been guilty of negligence in putting up tomers tell him of the soda pop bottles burst- the meat for sale. If appellees are liable at ing, and that it was his duty to take up all under the evidence in this case, a recovthese bursted bottles, as he had instructions ery on account of that liability cannot be to replace the broken ones with other bot- defeated because of the lack of privity. tles containing soda pop; that they broke The proof is that the bottles were sold and through being overcharged, or, from the bot- delivered to the appellant, who was engaged tles being defective; and that you could not in business with her husband, although so tell by looking at the bottles whether they far, at least, as the bottles in question are would break or not. He further testified that concerned, the business was in her charge he cautioned appellees that too many bottles and under her control. were bursting and that they would have It is urged that the business being controuble about it; that they were charging ducted by her could not be hers, nor could the bottles with too much gas and that the she be a partner therein on account of the overcharge was sufficient to burst them and interest of her husband, as the wife canwas the cause of their bursting.

not engage in a partnership business with A witness, Anderson, testified that he was her husband. But, whatever her relaengaged in the distilled water and soda water tionship to her husband in regard to this business, and had been in the latter busi- business may have been, the fact remains ness for 7 years, and knew the methods of that she was in charge of it, and was injured charging such bottles; that unless a bottle while handling one of the bottles in the usual was cracked it could not be told whether it and necessary

of business. This was defective or not, but that charging the handling of the bottle by the vendee, or his bottle was the usual test to discover that fact, employé, was necessarily within the conand that if the bottle was not defective it templation of the parties when the sale was would not ordinarily explode, if it was prop- made, and if privity is essential to a recovery erly charged; that cold water will absorb where negligence is alleged on the part of at moderate pressure a great deal more of the vendor, there is such privity here as is the carbonic acid gas, with which it is charg- necessary to sustain a recovery. If the veued, than it will when the water is warm. dor is to be held liable at all for his negliHe further testified that his experience has gence in cases of this character, there is no been that some bottles would burst without reason for limiting that liability in favor of any apparent cause, and that the bottles used the vendee individually, who may never perby appellees were bought from a factory sonally be exposed to the danger resulting which is considered one of the largest and from this negligence. best glass companies in the world.

[2] Actionable negligence has been defined At the conclusion of appellant's evidence, as a breach of duty resulting in injury to the court, upon motion of appellees, directed some person to whom that duty is legally owthe jury to return a verdict in appellees' ing, and the duty here is not merely to so favor, which was done, and this appeal is charge a bottle as that its contents may not duly prosecuted from the judgment rendered be wasted, but also to exercise that care upon that verdict.

which an ordinarily prudent person would

use to avoid the infliction of an injury Bradshaw, Rhoton & Helm and Marshall / which might reasonably be expected to fol& Coffman, all of Little Rock, for appellant. low the failure to use this care; and that Carmichael, Brooks, Powers & Rector, of duty is owing, not only to the vendee, but Little Rock, for appellee.

also to his employés, who perform the serv

ice which the parties must have contemplatSMITH, J. (after stating the facts as ed as necessary to be performed when the above). [1] It is urged there can be no re-sale was made. covery here because of the lack of privity [3-5] There is a case reported in 138 Mich. between appellant and appellees, and the case 567, 101 N. W. 828, 68 L. R. A. 342, 110 Am. of Nelson v. Armour, 76 Ark. 352, 90 S. W. St. Rep. 321, 5 Ann. Cas. 177, the style of 288, 6 Ann. Cas. 237, is cited to sustain that which is O'Neill v. James, where the facts position. The facts in that case were that are strikingly similar to the facts in the inplaintiff had purchased from a dealer a can stant case, except that the party injured by of lunch tongue, which the dealer had pur- the explosion of the bottle was an employé chased from the Armour Packing Company, of the owner of the business, and there was the defendant, and the court held in that no proof of knowledge upon the part of decase that a demurrer to the complaint was fendant that the bottle which exploded had properly sustained, because there is no prip. been improperly charged with the gas. In. ity of contract between the vendor in one that case the plaintiff had recovered a subsale and the vendees of the same property stantial judgment, which was reversed on in the subsequent sale, and that each vendee appeal because of the insufficiency of the must resort as a general rule only to his evidence to sustain the allegations of the immediate vendor. No reference was made complaint, which allegations were held suffi

STITUTES.

Appellant sued appellees alleging they were COLYAR v. LITTLE ROCK BOTTLING

partners engaged in business in the city of WORKS. (No. 103.)

Little Rock, manufacturing and selling soda (Supreme Court of Arkansas. July 6, 1914.) pop and kindred articles, that plaintiff and 1. EXPLOSIVES (8 9*)-PERSONAL INJURIES

her husband sell soft drinks in said city, and ACTIONS-PRIVITY,

that about October 21, 1913, they bought Where defendant sold soda pop, to be re- from the defendants a case of their goods, tailed in a business owned jointly by plaintiff and after same was delivered at her place and her husband, there was sufficient privity between plaintiff and defendant for her to of business she lifted one of the bottles from maintain an action for injuries received by the the case and was carrying it to the ice box, bursting of a bottle, though plaintiff might not and while so doing, in the exercise of due be a partner with her husband, and was merely acting under his direction.

care, the said bottle, without coming into con[Ed. Note-For other cases, see Explosives, tact with anything, exploded and so injured Cent. Dig. 8 6; Dec. Dig. $ 9.*]

her left eye that it had to be removed, where2. EXPLOSIVES ($_9*)-PERSONAL INJURIES— by she not only lost the sight of her eye, but "ACTIONABLE NEGLIGENCE" WHAT CON- suffered great disfigurement and untold

“Actionable negligence” being breach of physical pain and mental anguish, and induty resulting in injury to some person to curred large expense for medical attention whom that duty is legally owing, a company and nursing. engaged in bottling soda pop and charged wa- A demurrer to the complaint was filed and ters is guilty of actionable negligence in overcharging the bottles in such a manner that they overruled, and upon motion appellant elected will explode, because it owes the duty of care, to proceed in her name alone; her husband not only to prospective purchasers, but to its having been joined with her at the instituemployés.

tion of the suit. (Ed. Note. For other cases, see Explosives, Cent. Dig. 8 6; Dec. Dig. $ 9.*

Appellees answered, denying the allegations For other definitions, see Words and Phrases, of the complaint, and stating that they purFirst and Second Series, Actionable Negligence.) chased the bottles used by them from a rep3. PRINCIPAL AND AGENT (8 177*)-NOTICE utable, well-known, and reliable bottle manTO PRINCIPAL-KNOWLEDGE OF AGENT. ufacturer, and filled them with due care, and,

The knowledge of an agent of a bottling if plaintiff was injured by one of them, it works that the bottles were so heavily charged that they burst without any other cause is was not due to their negligence, but to that imputable to the bottling company.

of appellant in handling and using same. [Ed. Note.-For other cases, see Principal Appellant testified that she was engaged and Agent, Cent. Dig. $8 670–679; Dec. Dig. 8 in running a little grocery and confectionery 177.*] 4. EXPLOSIVES ($ 9*) —PERSONAL INJURIES- handled cold drinks, and that the business

store in the city of Little Rock, and that she LIABILITY-KNOWLEDGE OF DEFECTS.

Where a bottling company had knowledge was owned by herself and her husband; that that bottles in the past had broken by reason as she took a bottle of soda pop from the of being too heavily charged with gas, it is case in which it had been delivered to put liable for the injuries received by a purchaser of bottled goods upon the explosion of a sur- it in the ice box, having picked it up with charged bottle.

her right hand, and while in the act of put[Ed. Note-For other cases, see Explosives, ting it in the ice box with her left hand, the Cent. Dig. 8 6; Dec. Dig. $ 9.*]

bottle exploded and put her eye out; that 5. EXPLOSIVES ($ 9*)-PERSONAL INJURIES- she handled the bottle carefully, and did not ACTIONS-EVIDENCE-SUFFICIENCY. In an action for injuries received by a

strike it against anything, yet it exploded, purchaser of soda pop upon explosion of a bot- and blew glass all over the floor where she tle, evidence of defendant's negligence in over- was standing. She testified that she had pur. charging the bottle held sufficient to go to the chased this soda pop from appellees, and jury. [Ed. Note.-For other cases, see Explosives, been delivered at the time of her injury. She

was taking it out of the case in which it had Cent. Dig. & 6; Dec. Dig. $ 9.*] 6. EXPLOSIVES ($ 9*)--PERSONAL INJURIES

further testified that she had been engaged LIABILITY-DEFENSES.

in this business for some years, during which Where a bottling company purchased its time a number of bottles had broken, and bottles from a responsible manufacturer, and that sometimes these bottles would break in they were of the standard grade and quality, it the case, and at other times they would is not liable for injuries received by chaser of its goods upon the explosion of a break on the ice. bottle, which was properly charged, but con- A witness, R. E. Sallie, testified that he tained a hidden defect.

had worked for appellees for a period of 342 [Ed. Note.-For other cases, see Explosives, Cent. Dig. 8 6; Dec. Dig. & 9.*1

years, during which time he had been en

gaged in the delivery of bottled drinks to the Appeal from Circuit Court, Pulaski Coun- appellees' customers, and that it was rather ty; Guy Fulk, Judge.

common occurrence for these bottles to Action by Rebecca Colyar against the burst while he was handling or hauling them, Little Rock Bottling Works. From a judg- and that he had had them burst on his wagon ment for defendant, plaintiff appeals. Re- without any cause of which he was aware, versed and remanded, with directions. and that some had exploded by being struck *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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