author: J. Seaborn Holt, J.

text:
    Collie v. Coleman.
    5-706
    281 S. W. 2d 955
    Opinion delivered June 27, 1955.
    [Rehearing denied October 3, 1955.]

      Ed. B. Goolc, for appellant.

      Bruce Ivy and G. T. Coleman, for appellee.
   J. Seaborn Holt, J.

This is the second appearance of this case here. The opinion on the former appeal is now the law of this case, Collie v. Coleman, 223 Ark. 206, 265 S. W. 2d 515. In reversing the case we gave this directive: “The decree of the trial court is reversed in so far as it pertains to Charles E. Coleman, and the cause is remanded with directions to make findings against him in favor of each of the appellants in accordance with the facts disclosed in the record.”

On remand the trial court appointed a Master whose primary purpose was to state an account between Charles E. Coleman and his individual tenants and the tenants of Eed Bud Plantation, Charles E. Coleman, Trustee, based on the facts disclosed by the original record, already made. The Master took no additional testimony but called on appellees to furnish him a statement of the accounts on the amounts appellees contended appellants owed them and also called on appellants to examine the statement and determine whether they would agree to its correctness. According to the Master’s request the statement was furnished to him and he was advised by the parties that they did not question it. The record reflected that all cash refunds due to the tenants (appellants) were held by the Cooperative Gin Company where appellants had had their ginning done, and that some of these cash refunds were paid over to Charles R. Coleman in cash, but the greater part was used to purchase preferred stock in the gin company in the name of Charles R. Coleman. The Master in his report treated this stock as having been converted by Mr. Coleman as of the date the cash payments were paid to him, and that the stock’s par value of $10.00 per share should be paid over by Coleman in cash (rather than in stock) to appellants.

The Chancellor in effect held, however, that the stock itself and not its cash par value should be surrendered and reissued to the appellants (tenants), and rejected so much of the Master’s report which found that appellants, after deducting any off-sets due to Coleman, were entitled to all refunds in cash and no part thereof in stock.

The Chancellor’s findings contained these recitals:

. . . “The Court now finds from the original record, the Mandate of the Supreme Court, the Report of the Master, Exceptions thereto by defendants Charles R. Coleman and Redbud Plantation, Reply by plaintiffs, and all pleadings and additional proof offered by the defendants, as follows :

“The original complaint was filed Oct. 27, 1950, against Charles R. Coleman and The Little River Cooperative Gin, Inc., and an amended complaint filed Oct. 23, 1951, making Redbud Plantation, Charles R. Coleman, trustee, and John Lott defendants. The statute of limitations prevents any of these plaintiffs not tenants of Charles R. Coleman from recovering anything prior to Oct. 23, 1948; that the ginning season was regarded as not closed until March 31st of the year following, so that the three tenants of Charles R. Coleman may have recovery as herein provided for 1947, 1948 and 1949, but all other tenants are limited to the years 1948 and 1949, as herein set out.

“The figures contained in the Master’s Report are hereby found to be correct in so far as they apply to the findings of the court outlined herein, and is the purpose of this court to recognize said figures as being correct, but in reaching the amount of recovery due these plaintiffs, the court has taken into consideration only the cash refunds actually made, together with interest thereon and for the years herein indicated. If it should be determined that this court is in error as to the statute of limitation and as to the amounts due these plaintiffs, references to the Master’s Report will materially lessen the task of figuring these amounts.

“Based on these findings, the court finds that the plaintiffs are entitled to recover as follows:

“(1) Odie Canada, for his share of cash refunds for 1947, $17.34 and 6% interest thereon from April 1, 1948 to Nov. 1, 1954, $6.93, total $24.27. No ginnings for 1948 and 1949, so no recovery for those years. Total stock issued on his ginning for 1947 was $160.00, and he should have stock for % this amount, or $80.00.

“ (2) J. A. McConnell, for his share of cash refunds for 1947, $20.67 and 6% interest from April 1, 1948 to Nov. 1, 1954, $8.26. No cash refund for 1948. For 1949 cash refund of $39.20, with interest April 1, 1950 to Nov. 1, 1954, $10.96. Total for the three years $79.09. Total stock issued on his ginning for the three years $560.00 and he should have stock for % or $280.00.

“(3) Lethia Sibley, no cash payments made for 1947, 1948 or 1949. Total stock issued $130.00, of which the tenant gets % or $65.00, with % to Jessie L. Collie, and % f° landlord.

“ (4) Jesse L. Collie, 1947 payments cut off by statute of limitation as he was tenant of Redbud Plantation; no payments were made in 1948, but for 1949 he should recover $46.50, with interest at 6% from April 1, 1950 to Nov. 1, 1954, $13.02, total $59.52. He would have no recovery because he owes Charles R. Coleman $315.32. Total stock issued on his ginnings, only for year 1948, $370.00, and his share would he % of said amount, or $277.50.

“(5) Floyd McConnell, can collect only for 1948 and 1949, but for these years no cash payments were made on his account. Total stock issued on ginning is for year 1948 in sum of $190.00, and he would be entitled to %, or $95.00; with % going to Jesse L. Collie in sum of $47.50, remainder to landlord.

“ (6) Jerry Jackson, 1947 payment cut off by statute of limitation; no cash payments made for 1948; and for 1949 cash payments due him $24.76, with 6% interest from April 1, 1950 to Nov. 1, 1954, $6.94, total $31.70. Stock issued only for 1948 in total sum of $170.00, and he is entitled to %, or $142.50.

“ (7) John Parnell, no recovery for 1947; cash payments for 1948 none, and not a tenant for 1949. Total stock issued on ginning for 1948 is $300.00, and of this amount he is entitled to %, or $225.00.

“(8) Ben Tyson, cut off for 1947 by statute of limitation; no cash payments made for 1948, but for 1949 he is entitled to $26.86 and 6% interest from April 1, 1950 to Nov. 1, 1954, $7.51, total $34.37. Total stock only for 1948 $310.00, and he is entitled to %, or $155.00.

“ (9) Willie Richardson, no recovery for 1947, and no cash refund for 1948; for 1949 he is entitled to recover cash refund of $16.10, with 6% interest from April 1, 1950 to Nov. 1, 1954, $4.50, or total of $20.60. No stock recovery for 1947, but for 1948 he is entitled to % of $150.00 stock issued on his ginning, or $112.50.

“(10) Harry Morris, not a tenant for 1947, none paid for 1948, and no ginning for 1949. Stock issued on his ginning for 1948 was $1,450, and he is entitled to % of this amount, or $1,087.50.

“ (11) Charles Glenn was tenant only for 1948, and no cash payments were made. Total stock issued on his ginning was $270.00, and he is entitled to % of this amount, or $202.50.

“(12) Sam Jones was not a tenant for 1947, only for 1948, when no cash payments were made. Total stock issued for 1948 was $250.00, and he is entitled to stock in amount of %, or $125.00. Not a tenant for 1949.

“(13) Robert Howard, tenant only for 1947, and entitled to no recovery for that year.

“ (14) Doffie Walls, tenant only for 1947, and entitled to no recovery for that year.

“(15) Caleb Tyson and Ethel Tyson, no recovery as the indebtedness at time of their death exceeds any amount for which recovery might be had.”

The court entered a decree in accordance with these findings and directed that the stock be surrendered and cancelled and that the proportionate part due each of the appellants be issued to them and appellees were perpetually enjoined and restrained from withdrawing or accepting all or any part of the reserve and patronage accounts held by the Little River Cooperative Gin Company. Appellants were given judgment for cost against Charles R. Coleman in the court below in amount of $120.85 and for $61.50 for costs on appeal to the Supreme Court, total $182.35, and required Coleman to pay the Master’s fee in amount of $200.00.

We have concluded that the findings of the Chancellor and the decree that followed are with one exception in full compliance with our directive and not against the preponderance of the testimony. The one exception is this: the Trial Court held that twelve of the tenants could not recover their refunds from the period of October 27, 1947 to September 27, 1948. We hold that these twelve tenants were entitled to recover their refunds beginning October 27, 1947. Our first opinion fixed that as the date. The motion filed on September 27, 1951 related back to the date that the first complaint was filed, which was October 27, 1950. The motion went to a matter of form and not of substance. Thus on remand the Chancery Court will allow these twelve tenants their rights beginning October 27, 1947. Affirmed in part and reversed in part.

Justice Mill wee thinks the Master’s Report should have been adopted.

Justice George Rose Smith disqualified.


source: Caselaw Access Project

author: Ed. F. McFaddin, Justice.

license: Public Domain

text:
    International Brotherhood of Electrical Workers, Local Union No. 295 v. Broadmoor Builders, Inc.
    5-710
    280 S. W. 2d 898
    Opinion delivered June 27, 1955.

      O. D. Longstreth, Jr., Dave E. Witt and Joseph Brooks, for appellant.

      Wright, Harrison, Lindsey & XJpton, for appellee.
   Ed. F. McFaddin, Justice.

The question here presented is the legality of the picketing in which the appellants were engaged. The Chancery Court found that the picketing was unlawful and issued a permanent injunction. The correctness of that decree is challenged by appellants, who are the International Brotherhood of Electrical Workers Local Union No. 295, and Harold Veazey the business agent of the Local Union.

Broadmoor is a residential addition in the City of Little Rock and contains an area of 190 acres. In the addition there are many streets dedicated and used by the public. The addition is just West of Hayes Street; there are two streets opening from Hayes Street into Broadmoor; and there are two other streets that lead from Broadmoor to other streets, in Little Rock. In short, there are four streets that serve as ways of ingress and egress for Broadmoor Addition, in which are many residences. Fausett and Company are the developers of Broadmoor; and the appellee, Broadmoor Builders, Inc., is the Fausett corporation that serves as a general contractor for the building of the homes in the addition. According to the evidence in the record here, all the electrical work in the construction of the houses in Broadmoor was sub-contracted by Broadmoor to Price-Fewell Company, an electrical firm.

A short time prior to July 9,1954, Mr. Goode, Secretary of the Building Trades Council of Little Rock, contacted appellee for a conference for the purpose of having the electrical sub-contracts let to union contractors for all electrical work on any houses to be constructed in Broadmoor. Mrs. Fausett, secretary of the appellee company, advised Mr. Goode that the electrical work was already sub-contracted to Price-Fewell Company and that there was nothing that appellee could do about it. Mrs. Fausett testified, without contradiction, that Mr. Goode told her “ . . . there are always loopholes where you can break contracts.”

The effort of Mr. Goode, as above stated, was the only attempt by any of the unions to obtain sub-contracts for union sub-contractors, to gain recognition as bargaining agents, to obtain a higher wage scale, or to obtain any other benefits from appellee or Price-Fewell Company. Then on July 9, 1954, the appellant Union placed pickets at each of the four entrances to Broad-moor Addition, as hereinbefore described. Each picket carried a sign reading:

“No member of L.U. 295 I.B.E.W. Employed on this Job.”

Appellee sought injunction to restrain the picketing, claiming (inter alia):

* ‘ The union is picketing the plaintiff for the further unlawful purpose of forcing and coercing the plaintiff and its employees in the choice of whether the plaintiff will employ union labor and whether its employees will join the unions. Said purpose is contrary to the law and public policy of Arkansas as expressed by Amendment 34 to the Constitution of Arkansas and Act 101 of 1947.

“In the course of picketing the plaintiff’s construction job, the pickets have unlawfully obstructed traffic into and out of Broadmoor Addition. The principal entrances to Broadmoor Addition lie on Hayes Street in Little Bock which is a busy thoroughfare. The unlawful action of the pickets in blocking and obstructing these entrances is causing traffic to stop on Hayes Street an abnormal length of time, obstructs the view and attention of persons entering and leaving Broadmoor Addition, and creates a serious traffic hazard. ’ ’

Among other defendants, the complaint named the present appellant Union and Harold Veazey, its business agent. These are the only appellants here. A portion of Mr. Veazey’s deposition, taken by discovery under Act 335 of 1953, was introduced by appellee; and the remainder of the deposition was introduced by appellants as their only offered evidence.

As aforesaid, the Chancery Court held that the picketing by appellants was unlawful, and issued a permanent injunction; and appellants claim that the decree violates their right of free speech under the 14th Amendment to the United States Constitution; and appellants —in addition to cases from Arkansas and other State Courts — cite the following cases from the Supreme Court of the United States: Thornhill v. Alabama, 310 U. S. 88, 84 L. Ed. 1093, 60 S. Ct. 736; American Federation of Labor v. Swing, 312 U. S. 321, 85 L. Ed. 855, 61 S. Ct. 568; Bakery & Pastry Drivers v. Wohl, 315 U. S. 769, 86 L. Ed. 1178, 62 S. Ct. 816; and Cafeteria Employees Union v. Angelos, 320 U. S. 293, 88 L. Ed. 58, 64 S. Ct. 126. And to these we add other cases from the Supreme Court of the United States involving questions of picketing, to-wit: Senn v. Tile Layers Protective Union, 301 U. S. 468, 81 L. Ed. 1229, 57 S. Ct. 857; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 85 L. Ed. 836, 61 S. Ct. 552; Carpenters & Joiners Union v. Ritter’s Cafe, 315 U. S. 722, 86 L. Ed. 1143, 62 S. Ct. 807; Lincoln Fed. Labor Union v. Northwestern Iron & Metal, Co., 335 U. S. 525, 93 L. Ed. 212, 69 S. Ct. 251; American Fed. of Labor v. American Sash & Door Co., 335 U. S. 538, 93 L. Ed. 222, 69 S. Ct. 258; Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 93 L. Ed. 834, 69 S. Ct. 684; Hughes v. Superior Court, 339 U. S. 460, 94 L. Ed. 985, 70 S. Ct. 718; International Brotherhood v. Hanke, 339 U. S. 470, 94 L. Ed. 995, 70 S. Ct. 773; Building Service Employees v. Gazzam, 339 U. S. 532, 94 L. Ed. 1045, 70 S. Ct. 784; Local Union No. 10 v. Graham, 345 U. S. 192, 97 L. Ed. 946, 73 S. Ct. 585; Garner v. Teamster’s Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161; Capital Service v. N. L. R. B., 347 U. S. 501, 98 L. Ed. 887, 74 S. Ct. 699; and United Const. Workers v. Laburnum Const. Corp., 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833.

The appellee urges several contentions, each designed to obtain an affirmance of the Chancery decree which found the picketing to he unlawful. Some of these contentions are:

(1) The real purpose of the picketing was to force the appellee to breach its contract with Price-Fewell Company; and on this point appellee cites our own cases of Lion Oil Co. v. Marsh, 220 Ark. 678, 249 S. W. 2d 569; and Sheet Metal Workers v. E. W. Daniels Co., 223 Ark. 48, 264 S. W. 2d 597.

(2) The real purpose of the picketing was to force a violation of the Arkansas “Freedom to Work’-’ Constitutional Amendment No. 34, and the Act 101 of 1947, passed in pursuance to said amendment.

(3) That the assigned reason for the picketing was at variance with the rights of picketing; and on this point appellant Yeazey testified:

“Q. What was the purpose of the picketing?

“A. To advise our members that we weren’t working on the job. We have an awful lot of workers fooling around loose. We did have and have had for the last four months; and they would telephone in; ‘Is this or is that job paying the scale?’; and we would have to advise them. ’ ’

(4) That the business of appellee was not within the economic contest of any potential dispute between the Union and the sub-contractor; and on this point appellee gives Mr. Yeazey’s testimony:

“Q. The picketing was aimed at Broadmoor Builders, Inc.?

“A. Not necessarily. It just happened on that job that the electrical scale was not that which we were receiving from contractors for whom we do work and on this job they were not being paid that rate. . . .

“Q. Had you or your Union ever had any negotiations with Broadmoor Builders, Inc.?

“A. No, our local Union as a rule does not furnish work direct to the building contractor; and Mr. Fausett being a mass builder, in our catalog, he would be a general contractor. Even though he does not do any electrical work, he sub-contracts it out. I couldn’t have had any contract with him. . . . We don’t do business with general contractors. We work with sub-contractors.”

We find it unnecessary to discuss any of the above listed points, because we rest our opinion on another ground; that is, the picketing was too broad and in too general a locality. It interfered with normal business transportation, entirely disconnected from the purpose or designs of lawful picketing. It was shown that PricePewell Company was engaged in doing the electrical work in only six houses in Broadmoor. Addition; that at least 75 other houses were under construction in -the 190-acre area of the Broadmoor Addition; that at these other 75 houses there were no electrical workers and there was no labor dispute or other dispute of any kind; that these other 75 jobs of construction were in need of concrete, lumber, doors, etc.; that, because of appellant’s picketing of the four streets leading into Broadmoor, the truck-drivers would not deliver concrete, lumber, doors, etc. to the other 75 jobs entirely distinct and separated from the six jobs on which there were electrical workers; that truck shipments of doors would normally have been delivered direct to some of the other 75 jobs, but, because of the pickets of the appellant over all of the four streets leading into Broadmoor, the truck shipments were left at a storage depot in Little Rock and appellee was forced to have the shipments delivered to the jobs by other truckers Avho would cross the picket lines of the appellant.

The right to picket under lawful conditions has been recognized in numerous cases by this Court, some of which are: Local Union v. Asimos, 216 Ark. 694, 227 S. W. 2d 154; Boyd v. Dodge, 217 Ark. 919, 234 S. W. 2d 204; and Self v. Taylor, 217 Ark. 953, 235 S. W. 2d 45. The Supreme Court of the United States has recognized that the right of picketing has its limitations. In Giboney v. Empire Storage Co. (supra), picketing was enjoined where its purpose was to force a violation of the law. In Hughes v. Superior Court (supra) it was recognized that the picketing of a store to compel the employment of a proportion of Negro clerks was against the public policy of California. In Hanke v. International Brotherhood (supra) the U. S. Supreme Court declared that the Courts, as well as the Legislature, may declare the public policy of the State.

In the case of Mo. Pac. v. United Brick & Clay Workers Union, 218 Ark. 707, 238 S. W. 2d 945, we refused to enjoin picketing which prevented the delivery of railroad shipments by a carrier to the affected plant; but at the first session of the Legislature after our opinion, the Arkansas Legislature passed Act 257 of 1953, which declared that picketing was unlawful when it prevented the moving of trains to a plant when the railroad company was not a party to the strike. That enactment of the Legislature as to trains clearly indicates the public policy of Arkansas, which we now declare, as to the delivery of merchandise or other articles to persons or places entirely disconnected from any picketing that might be legal as against the limited person or place to be picketed. Here, truck shipments to 75 jobs of Broadmoor Builders, Inc. were effectively stopped by the presence of pickets who were concerned with only six jobs of PriceFewell Company; and it has been recognized in many cases that the respecting of picket lines is prevalent. If the appellant’s picket line was aimed at anyone it was directed toward Price-Fewell Company, which had the electrical snb-eontract and was working on six electrical construction jobs in Broadmoor. The appellant Union— as testified by Mr. Veazey — had no dispute with the appellee and would not have entered into a contract with the appellee, who is a general contractor. By placing the pickets as they were, appellants effectively stopped the delivery of concrete, doors, lumber, etc., to 75 jobs of appellee’s construction, and these jobs were in no way connected with the electrical work then being done by Price-Fewell Company on six other jobs. If appellant could legally picket all the streets leading into Broad-moor because there were six houses under construction therein where there were electrical workers, then, by the same token, the appellant could picket all of the highways leading into Little Eock because Price-Fewell Company had six jobs in the City on which no member of appellant Union was employed, and on which jobs the wages paid were below the Union scale. The picketing by appellant should have been confined to the jobs on which PriceFewell Company was working — provided the matters between Price-Fewell Company and the Union were at the picketing stage — and not to the entire addition of 190 acres on which were under construction 75 other houses in no way connected with the kind of work desired to be performed by appellant Union. We therefore conclude that the appellant’s picketing is unlawful under the facts in this case; and the decree is affirmed.

       Mrs. Fausett testified that Mr. Goode’s purpose was that he wanted the sub-contracts let to union sub-contractors. This was not denied in any way; and Mr. Veazey said that Mr. Goode reported the conversations with Mrs. Fausett just as Mrs. Fausett had testified.

       When appellee obtained injunctions against picketing in the Chancery Court in this case, there were other defendants besides the present appellee: Bricklayers, Masons & Plasterers International Union of America A.F.L., Local No. 1, and Ted Brewer, its business agent, were defendants, as well as United Brotherhood of Carpenters & Joiners of America Local Union No. 690 and Z. W. Burnett, its business agent. The said Local No. 1 and Local No. 690 and the business agent of each have not appealed to this Court from the injunction issued by the Chancery Court.

       Mr. Veazey also testified:
      “Q. Was there anything Broadmoor Builders, Inc., could have done that would have brought about a removal of the Local No. 295 pickets?
      “A. Yes, they could have insisted that the prevailing wage scale for electrical workers be paid. . . .
      “Q. Assuming that Broadmoor Builders, Inc., did have a contract with Price-Fewell, was there anything that Broadmoor could have done which would have brought about the removal of your pickets?
      “A. I don’t know. . . .”

       In 70 C. J. S. 1049, et seq., picketing is defined as the stationing of men “at or near the plant or job.” The basic idea, as reflected by the cases, is that the picketing must be in the immediate vicinity of the place of business of the institution or plant picketed. To the same effect, see 34 Am. Jur. 943.

       In the Hanke case, Mr. Justice Frankfurter used this cogent and descriptive language: “Here, as in Hughes v. Superior Court, 339 U. S. 460, ante, 985, 70 S. Ct. 718, we must start with the fact that while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech. Our decisions reflect recognition that picketing is ‘indeed a hybrid.’ Freund, On Understanding the Supreme Court 18 (1949). See also Jaffe, In Defense of the Supreme Court’s Picketing Doctrine, 41 Mich. L. Rev. 1037 (1943). The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and ‘the power of the State to set the limits of permissible contest open to industrial combatants.’ Thornhill v. Ala., 310 U. S. 88, 104, 84 L. Ed. 1093, 1103, 60 S. Ct. 736. A State’s judgment on striking such a balance is, of course, subject to limitations of the Fourteenth Amendment. Embracing as such a judgment does, however, a State’s social and economic policies, which in turn depend on knowledge and appraisal of local social and economic factors, such judgment on these matters comes to this Court bearing a weighty title of respect.”

       In Hughes v. Superior Court (supra), Mr. Justice Frankfurter emphasized the force of the picket line, as compared to ordinary dissemination of information by publication in these words: “But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing ‘is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.’ Mr. Justice Douglas, joined by Black and Murphy, JJ., concurring in Bakery & Pastry D. & H. Local v. Wohl, 315 U. S. 769, 775, 776, 86 L. Ed. 1178, 1183, 1184, 62 S. Ct. 816. Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word. See Gregory, Labor and the Law 346-348 (rev. ed. 1949); Teller, Picketing and Free Speech, 56 Harv. L. Rev. 180, 200, 202 (1942); Dodd, Picketing and Free Speech: A Dissent, 56 Harv. L. Rev. 513, 517 (1943); Hellerstein, Picketing Legislation and the Courts, 10 N. C. L. Rev. 158, 186, 187, note 135 (1932).

       We recognize that in Capital Service v. N. L. R. B., 347 U. S. 501, 98 L. Ed. 887, 74 S. Ct. 699, and in Garner v. Teamster’s Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161, the Supreme Court of the United States held that in some matters the National Labor Relations Act preempted the field in labor matters and that the State courts were not free to act. Yet, in United Const. Workers v. Laburnum, 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833, the United States Supreme Court recognized that actions in regard to labor matters might still be maintained in the State courts in some instances; and we understand the Laburnum case as recognizing that Hughes v. Superior Court and Henke v. International Brotherhood of Teamsters, still give the State courts the right to determine public policy and to “set the limits of permissible contests open to industrial combatants.”


author: Minor W. Millwee, Justice.

text:
    Missouri Pacific Railroad Co., Thompson, Trustee v. Clements.
    5-717
    281 S. W. 2d 936
    Opinion delivered June 27, 1955.
    [Rehearing denied October 3, 1955.]

      Cracraft & Cracraft and S. Hubert Mayes, for appellant.

      E. E. Hopson and John C. Sheffield, for appellee.
   Minor W. Millwee, Justice.

This is a suit hy appellee, W. Lee Clements, against appellants, Missouri Pacific Railroad Company and T. W. Keesee, to recover damages for trespass upon appellee’s lands and to remove a cloud on his title thereto.

The appellant railroad maintained a wooden trestle over its line across Swan Lake in Desha County. In 1944 the trestle was damaged by fire and the company decided to replace it with an earthen fill. The proposed project required the acquisition of land in the vicinity, or easements to excavate such land, in order to obtain a suitable supply of dirt for that purpose. Appellee owned a 40-acre tract adjacent to the fill site upon which there was a high silt ridge of timbered land that was most suitable and economically desirable for making the fill. Appellant Keesee owned a tract immediately north of appellee’s land.

There was an exchange of conveyances between the appellants in August, 1944, whereby the railroad conveyed to Keesee 47.5 acres of farm land lying about a mile north of the land desired for making the fill in exchange for an easement with right to excavate for a 10-year period on 38 acres described by metes and bounds adjacent to the fill site. The lease deed executed by Keesee embraced about 20 acres actually owned by appellee and included the high silt ridge from which the railroad planned to obtain dirt for the fill. The railroad proceeded with the excavation resulting in the digging of a 7.9-acre borrow pit upon and otherwise rendering worthless a total of 10 acres of appellee’s land.

The excavation work was nearly completed before it was discovered by appellee whose protests resulted in extensive negotiations for a settlement without success and the institution of this suit. Appellants offered no evidence at the trial and upon the proof presented by appellee the chancellor made extensive findings and entered a decree removing the cloud on appellee’s title cast by the lease agreement and awarding him damages in the sum of $3,200 for the destruction of his land.

It is undisputed that the location and terrain of the land destroyed made it by far the most suitable and economical in the area for the railroad’s use. The use of any other available land in the area would have entailed a much longer haul and added considerably to the cost of the project. Appellee testified that land in the area like the 10 acres in question was worth $70.00 per acre as timbered and uncleared farm land. He also testified that during the negotiations following the excavation he had a conference with H. H. Gudger, an engineer and Assistant Superintendent of the railroad at Wynne, Arkansas, in which the latter informed appellee that the railroad removed approximately 80,000 cubic yards of dirt from his land. Appellee further testified without objection that prior to the letting of the excavation contract he had a long conference with a contractor named Reed who was doing some work in the vicinity and was a prospective bidder on the excavation job. Reed had approached appellee about purchasing the land in question in the event he became the successful bidder and stated that railroad authorities had advised that the fill would require about 80,000 cubic yards of dirt. It was then and there agreed that Reed would pay appellee $100 per acre for the land used plus 4 cents per cubic yard for the dirt if Reed obtained the contract. There was also uncontradicted evidence to the effect that the 47.5 acres which the railroad deeded to Keesee in exchange for the 10-year lease agreement had a market value of $100 per acre.

In fixing the amount of appellee’s damages the trial court found that the railroad was in reality buying dirt, and not timbered land, and that it removed 80,000 cubic yards of dirt worth 4 cents a yard from appellee’s land in making the fill. The following further findings by the court are fully supported by the record: ‘ ‘ The evidence on the part of the plaintiff which may be treated as competent on the subject, together with the inferences therefrom, establish the gratuitous enrichment of Mr. Keesee in the sum of $4,750.00 and the enrichment of the Railroad Company ,by getting what it wanted, where it wanted it, and at considerable saving to itself. The evidence, also, shows that plaintiff furnished the dirt for this valuable fill or embankment for which he has not received one penny, with practically no effort on the part of the Railroad Company to see that he got remuneration and with actual opposition on the part of Mr. Keesee to prevent him from getting reasonable compensation.”

I. Measure of Damages. Appellants first argue that the chancellor applied the wrong measure in'arriving at the amount of appellee’s damages. They point to appellee’s testimony to the effect that the 10 acres in question was worth $70 per acre as timbered and uncleared farm land and say that this constituted the only evidence in the record which even purported to establish the market valué of the land destroyed. As appellants suggest, we have held that the measure of damages for permanent injury to real estate is the difference in market value before and after the injury. Standard Oil Co. of La. v. Goodwin, 174 Ark. 603, 299 S. W. 2. It would follow that where the injury is both total and permanent, as here, the measure of damages would be the market value of the land destroyed. In establishing market value, however, it does not necessarily follow that the landowner is limited to the value of the land for one purpose only.

In Fort Smith and Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440, the court stated: “The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taldng for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market.” See, also, Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375; Gurdon and Fort Smith Rd. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. Thus in a proceeding to condemn a site for a railroad bridge this court held that evidence showing that the land required for that purpose possessed superior advantages as a bridge site was admissible as affecting the question of its market value. L. R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51. Also in Yonts v. Public Service Co. of Arkansas, 179 Ark. 695, 17 S. W. 2d 886, landowners were held entitled to judgment for the market value of land based on its availability as a damsite and reservoir. While the foregoing cases involved condemnation proceedings under the power of eminent domain of railroads or other utilities, we hold the same rule applicable here. It would be anomalous indeed to say that an owner should receive less for property taken from him tortiously and without authority than when taken by orderly legal process. It follows that the chancellor, in fixing the market value of the land destroyed, was not confined to a consideration of its use for agricultural purposes and had a right to base his findings upon its availability for the most valuable purposes for which it could be used, including its location, character and suitability for use in making the fill.

II. The Evidence. Appellants also contend there was no competent evidence upon which to predicate an award of $3,200 or base a finding that 80,000 cubic yards of dirt had been excavated. They point to the testimony of appellee relative to his conferences with, and statements made by, Gudger and Reed and urge its incompetency as hearsay. But this testimony was admitted without objection in the trial court and it is too late to make such objection here. We so held in Gen. Fire Ext. Co. v. Beal-Doyle D. G. Co., 110 Ark. 49, 1605 S. W. 889, where Ihore was a failure to object in the trial court to testimony fixing an erroneous basis for determining market value. See, also, Sandidge v. Sandidge, 212 Ark. 608, 206 S. W. 2d 755. The rule that all objections to evidence and witnesses must be made in a timely manner in the trial court, and will be considered as waived when the case reaches us on appeal, if not so made, is equally applicable in chancery cases as in cases at law. Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495.

Moreover, we do not agree that the statement made by G-udger was incompetent. Several communications between the railroad and appellee tend to show authority to speak for the company. In addition there was the uncontradicted evidence of the peculiar adaptability of the land for the purpose at hand and that the land given by the railroad in exchange for the excavation right had a market value of $4,750. In our opinion the evidence is sufficient to sustain the damages awarded.

Affirmed.


author: George Rose Smith, J.

text:
    Hedrick v. Hickman, County Judge.
    5-709
    280 S. W. 2d 406
    Opinion delivered June 27, 1955.

      Clifton Bond, for appellant.

      John F. Gibson, for appellee.
   George Rose Smith, J.

At a local option election held on August 7, 1954, Bradley County apparently approved prohibition by a vote of 2,001 to 1,673. Certain wets unsuccessfully contested the election in the county court and were also unsuccessful upon appeal to the circuit court. The circuit court’s order of affirmance, entered February 22, 1955, permitted the judgment to be superseded pending an appeal to this court. That appeal was recently lodged here but is not yet ready for submission.

The case at bar is an allied proceeding by which several drys sought in the circuit court a writ of mandamus to compel the county court to enter an order declaring the result of the election and terminating the sale of intoxicants within the county. The circuit court, on the same day that it decided the election contest, denied the petition for mandamus.

On the merits the question is whether the filing of a contest can suspend the effect of a local option election until the contest is decided. It cannot be doubted that such a suspension was contemplated by the Thorn Liquor Law of 1935. By that act the county board of election commissioners was required to certify the election result to the county clerk. The clerk was directed to keep the certificate until the next regular term of the county court, when it became the duty of the county judge to have the certificate spread of record in his court. Ark. Stats. 1947, § 48-809. Ordinarily the dry law then became effective at the expiration of sixty days from the recording of the certificate. § 48-810. If, however, a contest were filed the law directed that the certificate not be recorded. § 48-820. It was also declared that contests should be governed by the laws applicable to the contest of any election of county officers. Ibid. The statutes so referred to permit appeals to be taken with or without supersedeas. § 3-1204. Thus under the procedure adopted in the Thorn Liquor Law the institution of a contest suspended the effective operation of the election, not only by the withholding of the certificate from the public records but also by the authorization of writs of supersedeas on appeal.

The appellants contend that the cited provisions of the 1935 statute have been repealed by Initiated Act No. 1 of 1942, which contains this sentence: “The County Court within twenty days after said election shall make and have entered of record its order declaring the result of said election.” Ark. Stats., § 48-802. It is urged by ,the appellants that this sentence fixes a maximum period of twenty days within which the outcome of the election must be given effect, whether or not a contest is pending.

We are not willing to say that the 1942 initiated measure repealed by implication the plain terms of the 1935 law. In addition to the settled rule that repeals by implication are disfavored, the initiated act itself declares that it shall be cumulative to the liquor laws already in force. Ark. Stats., § 48-806. A conclusion of implied repeal would require either a finding that the later statute had covered the entire subject anew or a finding of irreconcilable conflict between the two statutes.

Neither finding can fairly be made in this instance. The Thorn law, by its own provisions and by its reference to other statutes, laid down a complete procedure for the conduct of local option election contests. By contrast the initiated act does not even mention such contests, much less undertake to re-cover that field in its entirety.

Nor does there exist such a conflict that both acts cannot be given their proper effect. Under the older law even if no contest were filed the newly adopted dry law did not go into effect until sixty days after the opening of the next term of court, which might involve altogether a delay of several months. The sentence in the initiated act now relied upon by the appellants reduced this period, in the absence of a contest, to a maximum of twenty days. To that extent the new law certainly supplants the old. But there is no compelling reason to think that this clause was intended to extend also to the matter of election contests — a subject which the initiated act does not purport to touch. In a closely contested contest, where the margin of victory consists of only a few votes, the appellants’ construction of the statutes might result in a county alternating between a wet and dry status as the case progressed in four stages from the county board to this court. “It is contrary to public policy that the incumbency of a public office should be changed by the decision of the intermediate courts, so long as an appeal is being diligently prosecuted in good faith to a final hearing in the Supreme Court.” Williams v. Buchanan, 84 Ark. 404, 106 S. W. 202. Here the asserted repugnancy between the two statutes is not sufficiently clear-cut to require a finding of implied repeal.

Affirmed.


author: Robinson, J. J. Seaborn Holt, Justice

text:
    Robertson v. King.
    5-715
    280 S. W. 2d 402
    Opinion delivered June 27, 1955.

      Brockman S Brockman, for appellant.

      B. Ball, for appellee.
   Robinson, J.

The principal issue here is whether appellant, a minor, may rescind a contract to purchase a pick-up truck. On the 20th day of March, 1954, L. D. Robertson, a minor, entered into a conditional sales agreement whereby he purchased from Turner King and J. W. Julian, doing business as the Julian Pontiac Company, a pick-up truck for the agreed price of $1,743.85. On the day of the purchase, Robertson was 17 years of age, and did not have his 18th birthday until April 8th. Robertson traded in a passenger car for which he was given a credit of $723.85 on the purchase price, leaving a balance of $1,020.00 payable in 23 monthly installments of $52.66 plus one payment of $52.83. He paid the April installment of $52.66.

It appears that Robertson had considerable trouble with the wiring on the truck. He returned it to the automobile dealers for repairs, but the defective condition was not remedied. On May 2nd, the truck caught fire and was practically destroyed. He notified the automobile concern and they stated that they would send the insurance man to see him. It appears that the insurance representative, upon finding out that Robertson was only 17 years of age, refused to deal with him.

On June 7th, appellees filed suit to replevy the damaged truck from Robertson. By his father and next friend, Robertson filed a cross-complaint in which he alleged that he is a minor and asked that the contract of purchase be rescinded and sought to recover that part of the purchase price he had paid, which he alleges is the amount of $723.85, allowed by the dealers on the car traded in, plus the one monthly payment of $52.66, totaling $776.51. A jury was waived and the cause was submitted to the court. There was a judgment for King and Julian on the complaint and the cross-complaint. On appeal, Robertson contends that he was 17 years of age at the time of the alleged purchase and that he has a right under the law to rescind the contract and to recover the portion of the purchase price he has paid.

Appellees contend that the judgment should be sustained because Robertson did not return the damaged truck to the automobile dealers. However, the judgment of the court states: ‘ ‘ The court further finds the proof to be that the plaintiff has possession of the said GMC pick-up truck. ’ ’ Hence, there is no merit to this contention. Appellees also contend that Act 337 of 1953 applies in that a minor cannot rescind a contract of purchase without reimbursing the seller for any loss that he may have sustained by reason of such rescission. This statute deals with situations where a minor is 18 years of age at the time of making a purchase. The statute is not applicable here because according to the undisputed evidence Robertson was only 17 years of age at the time of entering into the purchase agreement.

Appellees further contend that the minor is bound by the contract because the automobile was a necessary. The record does not contain any substantial evidence to support this contention. The only evidence on this issue is that the boy quit school in 1951 and has been earning his own living since that time, and that he has been working for a construction company and traveling around the country to different jobs with his father in his father’s truck. The boy lives at home with his parents and there is no showing whatever that he needed the truck in connection with any work he was doing. One of the witnesses for the appellees testified that the boy stated he ivanted to use the truck in a farming operation. The record contains no evidence that he was engaged in farming at any time. Another witness for the appellees testified that the boy stated that he Avanted to purchase the truck on the “farmer’s plan,” but there is no showing that the car Avas sold to him on a “farmer’s plan.” He was allowed a sum on the car which he traded in, amounting to more than one-third of the purchase price of the new truck, and he was to make substantial monthly payments for the balance. Just what the “farmer’s plan” is does not appear in the record, but it is a matter of common knoAAdedge that the plan under Avhich the boy bought the truck is the usual method of making purchases of automobiles. In a suit by a minor to rescind a contract the burden is on the defendant to show that the article was a necessary. Barnes v. Rebsamen Motors, Inc., 221 Ark. 791, 255 S. W. 2d 961.

It is our conclusion that the evidence does not sustain a finding that the truck was a necessary to Robertson. In that respect, this case is distinguishable from Sykes v. Dickerson, 216 Ark. 116, 224 S. W. 2d 360, where the court said: “It was contemplated that he would use the truck in hauling lumber, and for some months he did so, as an aid to self-support. ’ ’ The law is settled in this State that a minor may rescind a contract to purchase where the property involved is not a necessary. Foreman v. Dickerson, 177 Ark. 121, 6 S. W. 2d 829; Arkansas Reo Motor Car Company v. Goodlett, 163 Ark. 35, 258 S. W. 975; Quality Motors, Inc. v. Hays, 216 Ark. 264, 225 S. W. 2d 326.

The automobile dealers have disposed of the car they received in the trade, and cannot restore it to the minor. In a situation of this kind, the weight of authority is that the actual value of the property given as part of the purchase price by the minor is the correct measure of damages. Neither side is bound by the agreement reached as to the value of the car at the time the trade was made. This is true because the contract has.been rescinded and there is no contract fixing the value. It is said in 43 C. J. S. 117: “While it is generally held that, where property traded in by the infant as part of the price is beyond reach of the seller, the infant is entitled to the reasonable value of the property at the time of the purchase, rather than the value fixed in the purchase agreement, it has also been held that he is entitled to receive the value fixed in the agreement.”

In support of the rule that a reasonable value of the property at the time of purchase governs, C. J. S. cites Collins v. Norfleet-Baggs, Inc., 197 N. C. 659, 150 S. E. 177, where the court said: “Where the infant parts with personal property, he may, upon disaffirmance, recover the value of such property, as of the date of the contract, but he is neither bound by, nor entitled to be awarded, the price fixed by the contract, for its real value may be more or less than the amount so stipulated. ’ ’ However, in Lockhart v. National Cash Register Co., (Tex. Civ. App.) 66 S. W. 2d 796, the Court of Civil Appeals in Texas held the fixed trade in value prevailed. In 27 Am. Jur. 790, it is said: “Where, upon an infant’s disaffirmance of a purchase of an automobile in exchange for his note and an old automobile, the old automobile cannot be restored, he is entitled to recover the value thereof, which is presumably the valuation at which the defendant took it.” Cited as authority in Schoenung v. Gallet, 206 Wis. 52, 238 N. W. 852, 78 A. L. R. 387. In that case there was no showing that the automobile traded in by the infant had any value other than that mentioned in the purchase agreement. The court said: “As plaintiff’s former automobile has been wrecked and cannot be restored by defendant, he is liable for the value thereof, which is, presumably, the sum of $50 at which he valued it when he obtained it from plaintiff.”

In the case at bar, although the minor was allowed over $700.00 on his car in the trade, there is evidence to the effect that it was actually worth about $350.00. Although there is conflict among the authorities as pointed out above, we believe the better rule holds that the value of an article given in trade by a minor as a part of the purchase price is the reasonable market value of the article at the time of the purchase, and that neither party is bound by the value fixed in the purchase agreement.

Young Robertson is a minor; the truck was not a necessary; and Act 337 of 1953 is not applicable. Hence, the court erred in finding for the automobile dealers, and the cause is therefore reversed and remanded for a new trial.

Mr. Justice Holt dissents.

J. Seaborn Holt, Justice

(dissenting). I think this case should be affirmed for the reason that as I read the record, there was ample substantial evidence to support ihe findings and judgment of the trial court.

A jury having been waived, we must give to those findings and judgment the same force and effect that we give to the verdict of a jury, therefore, when we find some substantial evidence to support the findings and judgment of the trial court viewed in the light most favorable to appellee (here), we must affirm.

In this case there was testimony in the record that appellant at the time he purchased the truck in question was an active, well developed, industrious young man and would easily pass for one of the age of 22 years. Mr. Turner King testified that appellant told him, at the time lie made the contract, that he was 22 years old and wanted the truck for farming purposes. Appellant testified that he had made his own living since he was about 15 years of age and according to his own testimony, and that of his father, he had been employed and working for more than three years. In fact, he had traveled with his father into many states worldng with him on contracts. He testified he quit school in 1951. Appellant’s father testified that his son worked down in Texas, and he took his son with him, that they then went to Louisiana, next to Ohio, to Pennsylvania and from there to South Carolina. On these trips they sometimes used a bus or other times his father’s pick-up truck. Appellant told the seller of the truck at the time the contract was made that he wanted the truck in his business and for farming purposes, and delivered a pleasure car, which he had previously without assistance purchased, and owned, to the dealer as part payment on the truck.

It seems to me that the above testimony alone is substantial and sufficient to show that the truck that appellant bought was necessary in his farming and contractural work, was bought for these purposes, and, therefore, that the judgment was correct. Of strong significance is the fact that appellant, who owned a pleasure automobile, would trade it in on the purchase price of a truck unless he felt the necessity for a truck to use in farming, his business, and undertakings.

In the very recent case of Sykes v. Dickerson, 216 Ark. 116, 224 S. W. 2d 360, we held that -whether a truck was a necessary, such as would make a minor’s contract valid, must be determined by the particular facts in each ease. We there said:

“The remaining contention is that an automobile truck purchased by a minor for the purpose of use in making a living for himself is a necessaxy, so that the minor would be liable for it. This contention would in Arkansas today have to be based on the Uniform Sales Act, § 2, Ark. Stats. (1947) § 68-1402, which provides: ‘Where necessaries are sold to an infant ... he must pay a reasonable price therefor. Necessaries in this section means goods suitable to the condition in life of such infant . . . and to Ms actual requirements at the time of delivery.’

. . . “The closest Arkansas case on its facts is Haynie v. Dicus, 210 Ark. 1092, 199 S. W. 2d 954, where a minor had purchased a ‘milk route’ and truck. The decision there was that whether these items were necessaries was a question of fact and the finding in the lower court, that under the circumstances they were ‘necessaries,’ was sustained. . . .

“ ‘Whether the nature of a contract is such that it can, under any circumstances, be regarded as a contract for necessaries, is a question of law; but if the court decides that under some circumstances such a contract might be for necessaries, it then becomes a question of fact for the jury whether it was so in the particular case. ’ Williston, Contracts (Rev. Ed., 1936) § 241. There have been some intimations by legal writers that automotive vehicles purchased for business purposes would never be deemed necessaries where an infant is concerned. Compare 43 C. J. S. 190, 192. We do not so hold. Cases cited in support of that generalization have usually reached the result by reason of the peculiar facts in the individual case, or because of express findings of fact by jury or trial judge that a car was not a necessary for a particular infant.”

Obviously, justice, common honesty and decency require all to pay their just obligations. Courts should therefore exhaust every means available to force slackers, including minors, to honor their contracts. Our lawmakers evidently came to this conclusion by enacting Act 337 in the 1953 Session. As I view the facts here, as pointed out above, we should declare this minor’s contract good because he bought a necessary. I would affirm.


author: Robinson, J. Ed. F. McFaddin, Associate Justice

text:
    Bragg v. Lambert.
    5-721
    280 S. W. 2d 718
    Opinion delivered June 27, 1955.

      Norton é Norton, for appellant.

      John L. Anderson, for appellee.
   Robinson, J.

The pleadings in this case give rise to the issue of the ownership of 80 acres of farming land. The cause is here at this time on the point of whether the Chancellor erred in appointing a receiver to take charge of the property and rent it out until the case can be decided on its merits.

The complaint filed by appellee alleges, inter alia, “that unless a receiver is appointed to take charge of said property immediately, to make necessary arrangements for farming same for the year 1955, to secure the proper allotment and to protect said property, the plaintiff will suffer irreparable injury.” The hearing was held before the Chancellor on March 4, 1955 on the question of appointing a receiver. At that time, plaintiff J. B. Lambert testified that the condition of the farm was just about as bad as it could be. No effort had been made to put the land in shape for planting. Last year’s cotton stalks were still standing and the Johnson grass was so bad one could hardly see the old stalks. Pictures were introduced in evidence showing the condition described. The witness J. B. Lambert, Jr., also corroborated the testimony of his father. On the other hand, appellant Alex Bragg testified that he had prepared several acres of the land and that he was equipped to make a crop.

The witnesses were before the trial court, and that court was in a much better position than is this court to judge their credibility. In making the decision to appoint a receiver the court said: “It would be for the protection of all parties that a receiver be appointed to insure a crop being made on this land this year. The defendant will not be disturbed in the possession of the house. Farming time is here — and it will be well to have a crop made on the land. . . . That is my greatest concern here. This is March 4 and the land must be prepared and planted soon if a crop is to be made at all.” Ark. Stats., § 36-112, provides: “Appointment of receiver pendente lite. In an action . . . between partners or others jointly owning or interested in any property or fund, on the application of plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being-lost, removed or materially injured, the court may appoint a receiver to take charge thereof during the pend-ency of the action and may order and coerce the delivery of it to him. ’’ This court said in Ford v. Moore, 212 Ark. 248, 205 S. W. 2d 209: ‘‘ The general rule governing appointment of receivers 'is that the action of the court must be governed by a sound and judicial discretion.’ ”

We are unable to say there was an abuse of discretion by the trial court. Appellant argues the merits of the case, but on this appeal the only issue involved is the action of the Chancellor in appointing a receiver.

Affirmed.

Mr. Justice McFaddin concurs.

Ed. F. McFaddin, Associate Justice

(concurring). I reach the same conclusion as that reached by the majority, but by a reasoning process slightly different. Here is my reasoning:

The appellant argues: (1) that the mortgage he executed to Lambert is void because it was not signed and acknowledged by appellant’s wife (see § 50-415, Ark. Stats.), and (2) that there can be ho receiver because there is no valid cause of action. But in this argument appellant overlooks Lambert’s right to invoke the doctrine of equitable subrogation. See Stephenson v. Grant, 168 Ark. 927, 271 S. W. 974; and Teal v. Thompson, 180 Ark. 63, 20 S. W. 2d 307. Here Lambert claims: (1) that Bragg contracted to buy the land from the Lambrook Corporation upon making stated annual payments; and (2) that Lambert — not as a volunteer — made some of the payments to the Lambrook Corporation. Therefore, under the doctrine of equitable subrogation, Lambert “stood in the shoes of Lambrook Corporation,” and could successfully urge the petition for receivership without being compelled to prove the validity of the mortgage executed by Bragg to Lambert. This principle of equitable subrogation supports the appointment of the receiver independently of any question of the validity of the mortgage executed by Bragg to Lambert.


author: Lee Seamster, Chief Justice.

text:
    Leslie Miller, Inc. v. State.
    4807-8-9-10
    281 S. W. 2d 946
    Opinion delivered July 4, 1955.
    [Rehearing denied October 3, 1955.]

      Sherrill, Gentry £ Bonner, for appellant.

      Tom Gentry, Attorney General, Thorp Thomas, Assistant Attorney General, and Mehaffy, Smith £ Williams, for appellee.

      Warren E. Gurger, Asst. U. S. Attorney General, and Osro Cobb, U. S. District Attorney, Amici Curiae.

   Lee Seamster, Chief Justice.

In each of these cases, the appellants were found guilty in Pulaski Circuit Court on each of two counts of an information filed by the Prosecuting Attorney of Pulaski County, Arkansas, on behalf of the State of Arkansas. The separate informations charged appellants with violating the provisions of Act 124 of 1939, as amended (Ark. Stats. 1947, §§ 71-701 to 71-721) in that each of the appellants, without authority from the Contractors Licensing Board, (1) submitted a hid to the United States for the construction of certain facilities at a cost in excess of $20,000 on property owned, or leased, by the United States in Arkansas and (2) thereafter executed a contract to do said construction and entered into the performance of the contract. In each case, appellants were assessed a fine in the sum of $100 on each of the two counts of the information.

The contract with appellant, Engineering Construction Corporation, is for construction of an Air National Guard installation in Sebastian County, Arkansas, on property leased from the City of Fort Smith for that purpose. The other appellants, Ramsey and Leftwich, Tecon Corporation and Leslie Miller, Inc., have contracts for construction of facilities at the Air Force Base in Pulaski County, Arkansas. All of the above contracts greatly exceed the statutory minimum of $20,000. It is agreed that the lands on which the facilities are being constructed were purchased or leased, by the United States with the consent of the State of Arkansas but that the United States Government has not accepted jurisdiction over the lands as provided in 40 U. S. C. A. 255.

In each of the instant cases, appellants expressly deny that Act 124 of 1939, as amended, is applicable to its activities in placing the aforesaid bids, procuring the contracts, and performing work thereunder. The appellants contend that the stipulation in each of the cases shows that the lands upon which the contract is to be performed for the agency of the United States Government are either owned or leased by the United States or its agency for one of the purposes mentioned in Article 1, § 8, Paragraph 17, of the United States Constitution and the State by the provisions of § 10-1101 of the Arkansas Statutes, Anno., has consented to the acquisition by the United States of these lands, and has relinquished jurisdiction of the lands. The appellants rely upon the case of Lynch v. Hammock, 204 Ark. 911, 165 S. W. 2d 369, in which this Court stated: “We think it clear, under the above authorities, that the laws, supra, affecting the practice of medicine and surgery in Arkansas do not control and cannot apply to the rights of Dr. Lynch to practice on property, the jurisdiction over which has been surrendered to the United States, and the title to which property has been acquired by the United States by purchase.”

There is nothing in this opinion to indicate that 40 U. S. C. A. 255 was called to this Court’s attention at that time or that the statute was considered. On the other hand it is quite apparent that this Court, in deciding the Lynch case considered only two things: (1) had jurisdiction over the lands in question been surrendered by the State to the United States; and (2) had title to the property been acquired by the United States.

40 U. S. C. A. 255 provides in part as follows: “Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such ]ands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.”

In the case of Adams v. United States, 319 U. S. 312, 63 S. Ct. 1122, 87 L. Ed. 1421, the U. S. Supreme Court stated: ‘ ‘ Since the Government had not given the notice required by the 1940 Act, it clearly did not have either exclusive or partial jurisdiction over the camp area. . . . Since the Government had not accepted jurisdiction in the manner required by the Act, the Federal Court had no juiisdiction of this proceeding. In this view it is immaterial that Louisiana statutes authorize the Government to take jurisdiction, since at the critical time the jurisdiction had not been taken.” The opinion in the Lynch case was delivered on November 9, 1942. The Adams case was decided on May 24, 1943.

There can be no argument to the well settled principle that state sovereignty is complete except as clearly abdicated to the Federal Government by the Federal Constitution or by legislative act of cession. Therefore, state sovereignty is presumed in the absence of clear and explicit constitutional or legislative enactment to the contrary.

The appellants next contend that Ark. Stats., §§ 71-701 to 71-721, directly interferes with the performance of federal functions and cannot, therefore, under the doctrine of implied inter-governmental immunity, constitutionally apply to appellants’ activities herein. It is contended that the enforcement of the provisions of'the Act is in contravention of the sovereign power of the United States, as Article 4, § 3, Clause 2, of the Constitution of the United States expressly grants to Congress the power to make all needful rules and regulations respecting property belonging to the United States.

The facts in these cases clearly show that the appellants are independent contractors. The fact that each appellant had a contract, in excess of $20,000, with the United States to construct buildings on United States Government property does not grant to them immunity from the State’s law (Ark. Stats., §§ 71-701 to 71-721) which requires contractors to procure a contractor’s license before they can legally bid, contract or perform work on a contract, in Arkansas.

The United States Government is not a party to this suit, nor are the appellants herein, agents or representatives of the United States Government. An independent contractor is not clothed with governmental immunity solely because of his contractual relationship with the Federal Government. A tax imposed upon an independent contractor is not laid upon a government instrumentality. Ernest K. James v. Dravo Contracting Co., 302 U. S. 134, 82 L. Ed. 155, 58 S. Ct. 208; Metcalf and Eddy v. Mitchell, 269 U. S. 514, 46 S. Ct. 172, 70 L. Ed. 384; Alabama v. King and Boozer, 314 U. S. 1, 62 S. Ct. 43, 86 L. Ed. 3; Graves v. New York, ex rel. O’Keefe, 306 U. S. 466, 59 S. Ct. 595, 83 L. Ed. 927.

By analogy to these tax cases, state regulation of independent contractors has also been sustained in the face of increased economic burdens passed on indirectly to the Government by the independent contractors. Penn Dairies v. Milk Control Commission, 318 U. S. 261, 63 S. Ct. 617, 87 L. Ed. 748; Stewart & Co. v. Sadrakula, 309 U. S. 94, 60 S. Ct. 431, 84 L. Ed. 596; Railway Mail Ass’n v. Corsi, 326 U. S. 88, 65 S. Ct. 1483, 89 L. Ed. 2072; E. E. Morgan Co., Inc. v. State, Use Phillips County, 202 Ark. 404, 150 S. W. 2d 736; Sollitt & Sons Construction Co. v. Commonwealth of Virginia, 161 Va. 854, 172 S. E. 290, 91 A. L. R. 774; Ohio River Contract Co. v. Gordon, 244 U. S. 68, 37 S. Ct. 599, 61 L. Ed. 997.

Since the appellants admit that they have violated the provisions of the Act, if the Act is applicable to them, we must therefore affirm the judgment of the trial court in each of the above cases.,


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    Myers v. Williams, Chancellor.
    5-712
    281 S. W. 2d 944
    Opinion delivered July 4, 1955.
    [Rehearing denied October 3, 1955.]

      H. B. Stubblefield, for petitioner.

      Talley & Owen and Dale Price, for respondent.
   J. Seaborn Holt, J.

February 15, 1954, Louise Myers filed suit, in First Division Pulaski Chancery Court (Case 99357) for divorce, property settlement, alimony, maintenance for the children, attorney’s fees and court cost. Her husband, Johnnie Myers, answered with a general denial. He filed no cross complaint and sought no affirmative relief. The cause was heard June 10, 1954 and the Chancellor, Rodney Parham, rendered a decree granting to Mrs. Myers a divorce from bed and board only, custody of the children, $175 per month ($50 as alimony and $125 maintenance) and $400 which her husband owed her up to July 1, 1954; directed Johnnie Myers to continue to collect the rentals on property jointly owned by them, except the home place together with personal property therein, which he awarded to Louise Myers as a home for her and the children. He further directed the husband to maintain the home, pay the expense of utilities (except telephone) incurred, and that he pay cost and attorney’s fee of $500 incurred by his wife. The court retained jurisdiction and control of the cause “for such further orders and proceedings as may be necessary or proper to ascertain definitely and enforce the rights of the parties hereto.”

Thereafter on December 15, 1954, Johnnie Myers brought suit in the Second Division Pulaski Chancery Court (Case 101532), praying for an absolute divorce and summons was had on his wife the same day. Thereafter Louise filed a petition in her original suit in First Division (Case 99357) again seeking an absolute divorce and also for additional maintenance, and a new summons was issued and had on her husband in February 1955. At this juncture Mrs. Myers filed a motion in the Second Division to dismiss her husband’s, suit (101532) in that division on the ground, “that the proceedings and decree in said action No. 99357, involve and determine the matters alleged and issues which would be involved in this action and is res judicata thereof.” The court denied Mrs. Myers’ motion holding in effect that it had jurisdiction ; whereupon, Mrs. Myers filed motion in this court (an original proceeding) for Writ of Prohibition.

The sole question presented here is one of jurisdiction, it being asserted by Chancellor Williams of the Second Division that the court over which he presided had jurisdiction to hear Johnnie Myers’ suit for divorce, and on the other hand Louise Myers claims that the First Chancery Division, where the original suit was filed, retained and had sole jurisdiction.

On the record presented we hold that the Second Division of the Pulasld Chancery Court had jurisdiction. A decree as here granting a divorce from bed and board and a decree granting an absolute divorce “rest upon the same grounds the law merely permitting the Chancellor in his discretion” to grant either kind. Crews v. Crews, 68 Ark. 158, 56 S. W. 778; Clyburn v. Clyburn, 175 Ark. 330, 299 S. W. 38, and Stats. § 34-1202, Ark. Stats. 1947, in effect so provides. A decree of a court of equity pertaining to custody of children, maintenance, alimony, etc., is the same in a divorce from bed and board as in an absolute divorce, Bauman v. Bauman, 18 Ark. 320.

The parties are residents of Pulaski County and have been for many years. Clearly the First Division had jurisdiction over the parties to enforce its decree of June 10, 1954, but it did not have jurisdiction to try a new cause of action which was set out in the husband’s complaint in which he sought an absolute divorce, and filed by him and summons had thereon prior to his wife ’? petition in the first suit (99357) in which she agaii sought an absolute divorce. The June 10, 1954, decree above, as pointed out, was only for separation from bed and board and did not affect the status of the parties as to the continued existence of the marriage ties. “A decree for judicial separation, which used to be called a divorce from bed and board, is not really a divorce at all. It has no effect upon the marital status, which continues existent just as before the decree. The decree merely regulates the personal rights of the spouses in relation to the still-continuing marital status. It has no in rem effect.” Leflar, Conflict of Laws, § 139, page 286. The decree in the original suit was a final decree. There has been no appeal from it, and as indicated the husband did not ask for an absolute divorce or any affirmative relief in that suit and now for the first time filed, in effect, a new cause of action in the Second Division, Pulaski Chancery Court, asking for an absolute divorce. This he had the right to do. The principles of law announced in the recent case, Hill v. Rowles, 223 Ark. 115, 264 S. W. 2d 638, apply with equal force here. In that case, while there was pending in the Pulaski Chancery Court a suit by the wife for separate maintenance and after decree had been rendered in her favor the husband filed a separate suit in the Saline Chancery Court seeking an absolute divorce. The wife sought a Writ of Prohibition in this court on the ground that the Saline Chancery Court was without jurisdiction in the divorce proceeding. In denying the petition for the writ we held, [Headnotes 3, 4, 5, 264 S. W. 2d 638] “A determination, in a wife’s action for separate maintenance, that wife is entitled to separate maintenance is not a determination that her husband has no grounds for divorce. Wife’s action for separate maintenance, pending in Pulaski County, did not bar her husband’s action for divorce in Saline County, even though husband had not brought cross action for divorce in Pulaski County. The policy of the law is to support and maintain marital status wherever it is reasonable to do so in the circumstances. ’ ’

In that case as here the husband had not asked for divorce in the Pulaski Chancery Court. That issue had not been determined. While the decree there was for separate maintenance, and in the present case for a divorce from bed and board, the marital status was not affected by the decree in either case, but continued existent just as before the decrees. The appellant’s first suit (99357) was not res judicata and a bar to her husband’s suit (101532) for divorce in the Second Division, Pulaski Chancery Court. The petition for Writ of Prohibition is denied.


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    Whiteley v. Wilcox Oil Company.
    5-716
    280 S. W. 2d 903
    Opinion delivered July 4, 1955.

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

      Glenn R. Davis, Price Dickson and W. B. Putman, for appellee.
   Ed. F. McFaddin, Justice.

Appellants filed this action for $1,979.90 against appellee, Wilcox Oil Company, a corporation. The theory of the appellants was that they were entitled to the “retainage” which the State allowed the appellee. The cause was tried on an agreed statement of facts before the Circuit Court without a jury and resulted in a judgment for the appellee. AVe copy the agreed statement of facts in toto:

“R. W. Whiteley and John F. Whiteley are partners operating a filling station on the corner of West Mountain Street and South School Street in the City of Fayetteville, under the firm name of R. D. Whiteley and Sons Service Station. Neither the partnership nor any members thereof were qualified as ‘distibutors’ or ‘persons other than distributors’ as provided by §§ 75-1109 and 75-1110, Arkansas Statutes (1947) and were not authorized to buy motor fuels for sale in the State of Arkansas without payment of the Arkansas Motor Fuel Taxes, during any period of time in which said plaintiffs purchased gasoline from the defendant.

“Wilcox Oil Company is a corporation duly organized under the laws of the State of Delaware and is authorized to do business in Arkansas and is qualified as a distributor of motor fuels in the State of Arkansas as provided by § 75-1109, Arkansas Statutes (1947) holding distributors Permit No. 151 issued by the Commissioner of Revenues of the State of Arkansas and was such licensed distributor at all times involved herein.

“Wilcox Oil Company sold motor fuels to R. D. Whiteley and Sons from time to time beginning in December, 1949, and tbe last sale being in February, 1954. Sales were made at the Wilcox bulk plant at Bristow, Oklahoma, and transported to Fayetteville by public carrier tank truck. Gallonages were measured at the bulk plant at Bristow, Oklahoma, with proper temperature correction. No shortages existed when delivery was made at Bristow. Gasoline was transferred from tank truck directly to Whiteley’s retail tanks.

“During the period the parties were engaged in the purchase and sale of gasoline, Wilcox reported all gasoline sold to Whiteley for sales in the State of Arkansas and collected the correct Arkansas Motor Fuel Tax, making reports and remittances to the Commissioner of Revenues of the State of Arkansas, retaining therefrom the percentages authorized by § 75-1112C (1) (e) as amended by Act 352 of 1949. During the period herein covered, Wilcox retained one thousand nine hundred forty-six dollars and seventy-six cents ($1,946.76).

“At no time were any shortages in motor fuels suggested or claimed, either by evaporation, shrinkage or other losses from unknown causes by reason of the shipment of motor fuels from the Wilcox bulk plant to the Whiteley Retail Station. ’ ’

The Circuit Court judgment was correct. Section 75-1101 et seq. Ark. Stats, is the “Motor Fuel Tax Law.” Section 75-1106 levies a tax of 6%<5 per gallon on the motor fuel — gasoline, in the case at bar. Sections 75-1109 to 75-1113, inclusive, provide for the licensing of distributors and other persons; and require, inter alia, an application, a surety bond, accurate bookkeeping, regular reports, and remittances; and § 75-1112 (C) (1) (e), as amended by Act 352 of 1949, allows a “retainage” in this language:

“. . . it being determined by the General Assembly that 2% on the first 200,000 gallons of motor fuel so received by the distributor and 1% of the remaining of the total gallonage so received is the actual and average amount of loss resulting from evaporation, shrinkage and losses resulting from unknown causes irrespective of the amount thereof, and the cost of collection.”

Thus, under the law, the person holding a permit and making the collections and reports is allowed to keep a “retainage” to cover losses and cost of collections. Appellee, Wilcox Oil Company, was the license holder and kept the “retainage” in the case at bar; and appellants are trying to recover the said retainage on all the gasoline that they purchased from the Wilcox Oil Company. Appellants never attempted to become licensed in any way by the State of Arkansas. They were willing to let appellee perform all the requirements of the Arkansas law; and now appellants want to recover from appellee the $1,946.76 which the State of Arkansas allowed appellee to retain for all of its shrinkage, losses, troubles, and expenses of collection.

The agreed statement demonstrates the fallacy of appellants’ contentions. If they had wanted to have the “retainage,” they should have complied with the applicable Statutes, as mentioned. The money appellee retained was allowed by the State to the appellee, as a licensed distributor. There is no merit in appellants’ claim that appellee has been unjustly enriched. The case of Cook, Comm. v. Sears Roebuck, 212 Ark. 308, 206 S. W. 2d 20, does not support the appellants in any way. In 1 Am. Jur. 417, in discussing “Elements of Good Cause of Action,” the holdings of the cases are summarized in this language:

“A cause of action arises when that is not done which ought to have been done, or that is done which ought not to have been done, . . . The essential elements of a good cause of action are the existence of a legal right in the plaintiff, with a corresponding legal duty in the defendant, and a violation or breach of that right or duty with consequential injury or damage to the plaintiff, for which he may maintain an action for the recovery of money damages, or other appropriate relief.”

The law says ‘there is no wrong without a remedy’; and the converse of the situation must also be true: there can be no remedy when there has been no wrong. Here the appellee has not wronged the appellants in any way so the appellants have no cause of action on the statement of facts to which they agreed. The Circuit Court was correct in so holding.

Affirmed.


text:
    Isgrig v. City of Little Rock.
    5-723
    280 S. W. 2d 891
    Opinion delivered July 4, 1955.

      Bernal Seamster and Cooper Jacoway, for appellant.

      O. D. Longstreth, Jr., Dave E. Witt and Mehaffy, Smith & Williams, for appellee.
   Ed. F. McFaddin, Justice.

The Chancery Court sustained the defendants’ demurrer to the complaint and the intervention, and dismissed the case; and the question on appeal is whether the complaint and intervention stated a cause of action.

The plaintiff, W. B. Isgrig, is a resident of Pulaski County and a taxpayer of the County and of the City of Little Rock; the intervener, Greorge Spann, is a taxpayer and a resident of Little Rock; the defendants are the City of Little Rock and the Little Rock Municipal Airport Commissioners; and the purpose of the suit was to obtain an injunction against certain activities that the Little Rock Municipal Airport was undertaking.

The complaint alleged that Isgrig was the owner of 250 acres of land immediately East of the City limits of Little Rock; that in traveling from his land to the City of Little Rock (where he owned other property) Isgrig necessarily had to travel either over East 10th Street or East 26th Street (sometimes called Roosevelt Road Extension) ; that in 1934 the City of Little Rock, in order to close East 17th Street, made an agreement with property owners like Isgrig that the City would construct and maintain a road on East 10th Street and on East 26th Street; that the right-of-way of the East 26th road was to be 160 feet; and that the City was about to violate its agreement by closing said streets, with no provision for payment of damages therefor. The complaint further alleged:

“10. The Defendants are attempting to eliminate and settle their obligation to some of the property owners in the plaintiff’s vicinity by buying their lands but the Defendants are not treating all of the residents and property owners in a similar manner and do not have sufficient funds to pay to all of the property owners the damages they will suffer. Defendants’ failure to pay all damages while paying for some damages is completely arbitrary and an abuse' of their discretion.

“11. The area occupied by said airport is not capable of being expanded to fit the needs for airport facilities in the Little Bock area and by devoting all available money to making improvements on this present property, which is and will continue to be obsolete for airport purposes, for the Little Bock area the Commissioners are not exercising reasonable judgment and are arbitrarily wasting the funds of Plaintiff and other taxpayers of the City of Little Bock.”

The intervention of Spann adopted all the allegations in the Isgrig complaint, and also contained this paragraph as to specific instances:

“The defendants, Airport Commissioners,' have recently paid out funds to some of the property owners in this area in satisfaction of damages caused by the defendants and have filed suits to condemn other properties in this area among them the property of Addie Browning and Edgar Lovelace, under which defendants are proposing to pay for some of the damages caused by them; but said defendants are not paying or making any provisions to pay the damages suffered by other property owners, including intervener, and do not have sufficient funds to pay the damages which will be suffered by all of the property owners in this area if the defendants are permitted to proceed to wrongfully close, block and obstruct the streets and roads serving the area. ’ ’

The defendants demurred to the complaint and the intervention on three grounds:

“1. That the plaintiff and the intervener do not have the legal capacity to sue and are not proper parties to this action.

“2. That there is another action pending between the same parties for the same cause, to-wit: E. H. Bisser, Plaintiff vs. The City of Little Rock, et ah, Gr. B. Oliver, Intervener, bearing the Clerk’s filing number 98223 in the Pulaski County Chancery Court.

“3. That the Complaint and the Intervention do not state facts sufficient to constitute a cause of action. ’ ’

At the outset it is well to mention some of the elementary rules concerning the place and scope of a demurrer. As stated in 41 Am. Jur. 436 et seq.:

“A demurrer is the method of raising an objection to the sufficiency in law of a pleading. It may be filed either by the plaintiff or the defendant to test the other’s pleadings for defects therein apparent on the face of such pleadings. ... A demurrer does not raise any question of fact or a mixed question of law and fact, but questions of law only; and it is erroneous for the Court, in passing on the demurrer, to determine a disputed question of fact.”

In the case at bar the defendants’ first point in the demurrer was that neither the plaintiff nor the intervener had legal capacity to sue. Isgrig recited that he was a property owner in the area affected and also a taxpayer in the City of Little Rock, and that the Airport Commissioners were not exercising reasonable judgment li. . . and are arbitrarily wasting the funds of Plaintiff and other taxpayers of the City of Little Rock.” Spann, as intervener, made similar and more detailed allegations. These are sufficient as against a demurrer. The right of any citizen and taxpayer to have equity restrain the misapplication or misappropriation of public funds has been recognized in a number of cases: Town of Jacksonport v. Watson, 33 Ark. 704; Russell v. Tate, 52 Ark. 541, 13 S. W. 130; Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901; Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175; Rose v. Brickhouse, 182 Ark. 1105, 34 S. W. 2d 472; Brookfield v. Harahan Viaduct Imp. Dist., 186 Ark. 599, 54 S. W. 2d 689; Sitton v. Burnett, 216 Ark. 574, 226 S. W. 2d 544; Revis v. Harris, 217 Ark. 25, 228 S. W. 2d 624; and City of Stuttgart v. McCuing, 218 Ark. 34, 234 S. W. 2d 209. We conclude that the plaintiff and intervener, as citizens and taxpayers, had the capacity to maintain the suit.

The third point in the demurrer was, that the complaint and intervention did not state facts sufficient to constitute a cause of action. The cases previously cited are full authority for the holding that any taxpayer may invoke the aid of equity to prevent an unlawful expenditure of the public funds. Here there were the allegations as previously copied; and these were sufficient to state a cause of action.

Finally, we consider the second point in the demurrer, which alleged the pendency of another action. In Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8, in discussing the Statute that is now § 27-1115 (3rd subdivision) of Ark. Stats., we said:

“The Statutes of this State provide what shall be done in such cases. They provide that when it appears in the complaint that there is another action pending between the same parties for the same cause, the objection may be taken advantage of by demurrer; and if it does not appear in the complaint, it may be taken by answer; . . .”

In Sims v. Miller, 151 Ark. 377, 236 S. W. 828, we said that it is only when the pendency of another action appears on the face of the complaint that the question may be raised by demurrer. See also Keenan v. Strait, 221 Ark. 83, 252 S. W. 2d 76. There was not a word or a line in the complaint or intervention about any other pending cause of action; and the defendants could not supply such information by a demurrer. To so attempt constituted a ‘ ‘ speaking demurrer. ’ ’ In 41 Am. Jur. 440, the text states:

“A demurrer which sets up a ground dehors the record, or a ground which to be sustained requires reference to facts not appearing on the face of the pleading thus attacked, is said to be a ‘speaking demurrer’ and is bad. The demurrer should be overruled, since extrinsic facts, can be made available only by plea or answer. ’ ’

We have many cases in this jurisdiction recognizing the above quoted rules as to “speaking demurrers.” See Rider v. McElroy, 194 Ark. 1106, 110 S. W. 2d 492.

It is true that when the Chancellor sustained the demurrer in the case at bar on January 5, 1955, he knew that on November 15, 1954 he had decided the case of Risser v. City of Little Rock (which is now No. 724 in this Court). The Chancellor evidently saw no need to hear evidence in this case which he thought involved the same issues: therefore he sustained the demurrer. But in so doing he considered matters dehors the complaint. The demurrer, insofar as the other cause of action was concerned, was a “speaking demurrer” and should have been overruled. In view of our decision this day rendered in the case of Risser v. City of Little Rock (No. 724 herein), the defendants possibly will file other.pleadings in the Chancery Court in this case. But, in order to “keep the law straight” as regards the force and effect of a demurrer, it is necessary that the decree be reversed in the present case.

Reversed.

The Chief Justice and Justice Millwee not participating.

       The prayer of the complaint was: “Wherefore, Plaintiff prays that defendants be enjoined and restrained from closing East 10th Street and East 26th Street; that defendants be enjoined and restrained from spending any of the funds in their possession for improvements upon the airport until provision be made by said defendants for the payment of damages to the Plaintiff and others entitled thereto if said streets be closed, obstructed or blocked; and, that Defendants be enjoined and restrained from spending any of the funds in their possession for improvements upon the airport in its present location; for his costs herein and all appropriate relief.”

       Our own cases are to like efiect and may be iound collected under proper topics in West’s Ark. Digest, “Pleadings,” § 187 to § 218 (inc.).