author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Running v. Southwest Freight Lines, Inc.
    5-1265
    303 S. W. 2d 578
    Opinion delivered May 13, 1957.

      McMath, Leathermcm & Woods, for appellant.

      Wright, Harrison, Lindsey & TJpton, for appellee.
   Paul Ward, Associate Justice.

The questions for decision are: Did the Circuit Court have the discretionary right to refuse to take jurisdiction of a certain cause’of action, and, if so, did it abuse that discretion?

On November 5, 1953 appellant, Clifton Running, filed a complaint in the Circuit Court of Pulasld County, Arkansas against appellee, Southwest Freight Lines, Inc., containing the following material allegations: Appellant is now and at all times mentioned was a resident of Missouri; Appellee has at all times mentioned been a corporation existing under the laws of Missouri with its principal place of business in Kansas City, Kansas, it is authorized to do business in Arkansas, and had appointed a resident agent for Arkansas; On December 27, 1950 appellant was injured in the State of Illinois because of the negligence of appellee’s agent while driving a truck loaded with merchandise, and; As a result of such negligence and injury he was damaged in excess of $150,000.

Service of summons on appellee was had by delivering a copy to the said agent for service in Little Rock, Arkansas.

On November 25, 1953 appellee filed a motion to dismiss the above complaint upon the following grounds: 1. The Court is without jurisdiction of the cause; 2. Appellant, on July 21, 1953, filed a complaint on the same cause of action against the same appellee in the Circuit Court of Jackson County, Missouri, and thereafter, on August 14, 1953, voluntarily dismissed the same. Also the maintenance of this cause of action is contrary to public policy and constitutes a burden on the courts of Arkansas, and; 3. The alleged cause of action is barred by the statute of limitation in Illinois and appellee pleads the same.

On June 2, 1953 the parties stipulated substantially as follows: The facts set forth in the complaint, relative to dates and residences, are correct; This cause of action does not arise out of any business or operation of either appellant or appellee in the State of Arkansas, and; The allegations in the motion to dismiss relative to the suit and non-suit in Missouri are correct.

On June 22, 1956 the trial court considered appellee’s motion to dismiss, presented on the complaint and stipulation, and sustained the same on the ground that acceptance of jurisdiction would constitute a burden on the courts of Arkansas.

For a reversal, appellant bases his argument on three, grounds, viz: I. The lower court had jurisdiction; II. This Court, by its former decisions, has established the rule that jurisdiction will be accepted in this type cause of action, and; III. Even though it be held that the trial court had discretion in the matter, it was an abuse of discretion in this instance to refuse jurisdiction.

I

We agree with appellant that the trial court in this case, had a right to exercise jurisdiction if it had chosen to do so. This fact is not disputed by appellee, and it has been established by the decisions of this court. See, St. Louis & San Francisco Ry. Co. v. Brown, 62 Ark. 254, 35 S. W. 225; St. Louis I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Yockey v. St. Louis-San Francisco Ry. Co., 183 Ark. 601, 37 S. W. 2d 694.

II

We cannot agree, however, that the decisions above cited, or any decisions of this court, have established a rule which binds, or should bind, the courts of this State to accept jurisdiction in this case. A careful examination of our cases disclosed that they do not deal with the exact question presented here. Either there was not the same situation as to location of parties and cause of action as here or the question of jurisdiction was not raised.

In the opinions of many courts and textwriters it is important that courts have some discretion in accepting or rejecting jurisdiction in this kind of case in order to protect themselves and the people from the burden ensuing from imported cases, and in order to avoid hardships on and inconveniences to litigants. The necessity for this discretion has found expression in the doctrine known as forum non conveniens. The California Law Reyiew, Yol. 35 page 388, gives credit to a law review writer for bringing tbe term into American law, “contending that all American Courts had inherent power to decline jurisdiction under the doctrine. ” It is also there stated that: “After this article the use of the term became so general that in 1941 Justice Frankfurter referred to the ‘familiar doctrine of forum non conveniens as a manifestation of a civilized judicial system which is firmly imbedded in our law.’ ”

We recognize that not all courts have adopted the doctrine of forum non conveniens or recognize the discretion to reject jurisdiction where the court had power to exercise it, but we think the doctrine is sound. At least we are unwilling to hold that a court of this State has absolutely no discretion under any circumstances in cases of this nature.

Some of our own decisions indicate, if they do not exactly hold, that our courts can exercise discretion in the matter of accepting or refusing jurisdiction. In the case of Grovey v. Washington National Life Ins. Co., 196 Ark. 697, 119 S. W. 2d 503, the court quoted with approval from R. C. L. the following: “ ‘But in actions between nonresidents based on a cause of action arising outside the state, the courts are not obliged to entertain jurisdiction. They may and usually do so on principles of comity, but not as a matter of strict right. In other words, it lies within the discretion of the courts whether or not they will entertain such a transitory action.’ ” Likewise in Altshuler v. Altshuler, 222 Ark. 271, 258 S. W. 2d 545, this court in referring to the doctrine of forum non conveniens as it is discussed in Am. Jur., said:

“Without quoting, it suffices to say this authority recognizes that the matter of forum, in instances like the one presented here, involved ‘the exercise of judicial discretion’ on the part of the trial judge, . . .”

Many other jurisdictions uphold the discretionary powers of court to accept or reject jurisdiction in certain cases, and many of them recognize and apply the doctrine of forum non conveniens. See: Driscoll v. Portsmouth K. & Y. St. Ry., 71 N. H. 619, 51 A. 898; Foss v. Richards, 126 Me. 419, 139 A. 313; Stewart v. Litchenberg, 148 La. 195, 86 So. 734; St. Louis-San Francisco Ry. Co. v. Superior Court, Okla., 290 P. 2d 118; Price v. Atchison, T. & S. F. Ry. Co., 42 Cal. 2d 577, 268 P. 2d 457, and; Johnson v. Chicago, Burlington and Quincy Railroad Co., 243 Minn. 58, 66 N. W. 2d 763.

Ill

Having concluded that the trial court could exercise discretion in the matter of assuming or rejecting jurisdiction under the facts and circumstances of this case, then the question presented is: Did the trial court abuse its discretion in refusing jurisdiction?

The answer to the above question must be considered in the light of the fact that neither side introduced any evidence. Appellee takes the position that the facts shown in the pleadings and the stipulation are ample to sustain the trial court’s action (or discretion) in refusing to assume jurisdiction, but we do not agree. The facts referred to may be listed as follows: (a) Appellant is a resident of Missouri; (b) Appellee is domiciled in Missouri and is authorized to do business in Arkansas; (c) The cause of action arose in Illinois; (d) Appellant filed and dismissed a suit on this same cause of action in Missouri, and; (e) The statute of limitation has run on the cause of action in Illinois. Without much question facts (d) and (e) can be eliminated. The former could have no possible bearing on the matter, and the latter is equally favorable to appellant. See: Price v. Atchison, supra. Thus it is seen that the only facts presented to the trial court were those which are necessary to raise the question being here considered, and none on which to base choice or discretion. Consequently, there is no way or means by which this court can intelligently determine whether or not the trial court abused its discretion.

Our examination of the cases applying the doctrine of forum non conveniens reveals that several factors have a bearing on the question of accepting or rejecting jurisdiction, such as; the inconveniences that might accrue to either side in the matter of obtaining witnesses or documents. "Whether considered included in the said doctrine or not, we see no reason why the trial court should not properly consider other facts and factors of a different nature, such as the condition of the trial docket, the probable expense of the trial, and any other facts or circumstances affecting a just determination.

Since the record in this case contains no testimony upon which the court could base its discretion, and, consequently no testimony on which we can say whether the trial court abused its discretion, it becomes necessary to determine which party had the duty of producing such testimony. It is our conclusion, after careful consideration, that this burden rested on appellee. In the ordinary motion to dismiss, where testimony is required, the burden is always on the moving party to produce evidence to sustain the allegations of his motion, and we know of no good reason why the same rule should not apply here.

Since the questions involved on this appeal are somewhat novel and there has been announced no rule to guide trial courts in such matters, we think justice would be served by reversing this cause with directions to proceed further on appellee’s motion in accordance with this opinion, and it is so ordered.

Justice McFaddin concurs.

Justice Millwee would affirm.

Ed. F. McFaddin, Associate Justice

(concurring). I concur in the reversal of this case; but I regret very much to see the majority adopt by judicial legislation the doctrine of forum non conveniens in regard to transitory tort actions. This is the usual transitory tort action: the plaintiff is a resident of Missouri; the alleged tort occurred in Illinois; and the suit is brought in Arkansas where service was obtained on the defendant. The defendant interposed the plea of “forum non conveniens”; and this Court now sanctions that plea. I think the doctrine of forum non conveniens should not be applied to transitory tort actions, absent any legislative enactment. To demonstrate why I entertain such views is the purpose of this concurrence.

Volumes have been written on this (to Arkansas) new strange doctrine of forum non conveniens. In 35 Calif. Law Review (1947) at page 380 there is an exhaustive article on the subject; but I haver never yet found a good definition of forum non conveniens as applied to transitory tort actions. In Gulf Oil Co. v. Gilbert, 330 U. S. 501, 91 Law. Ed. 1055, 67 S. Ct. 839, the Court said: “The principle of forum non conveniens is simply that a Court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” No one is imposing on the jurisdiction of the Arkansas courts when such a person files a transitory cause of action in this State. Our statutes on venue may be found in § 27-601 et seq. Ark. Stats. After prescribing the venue in various kinds of actions, § 27-613 says: “Every other action may be brought in any county in which the defendant ... is summoned.” The Constitution of the United States in Art. IV, Section 2, says: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”. If Running had been a citizen of Arkansas he could have maintained this cause of action in Arkansas. Why refuse him right to redress because he is a resident of Missouri! Notwithstanding what the Supreme Court of the United States said in Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U. S. 1, 95 Law. Ed. 3, 71 S. Ct. 1, and in the other cases cited therein, I am still of the view that the doctrine of forum non conveniens, when applied in a State court on a transitory cause of action against a non-resident of. the State, is in violation of the said quoted section of the United States Constitution.

Aside from the constitutional question, there are other reasons why I think the majority, in the case at bar, has made a mistake in adopting any part of the rule of forum non conveniens. Three points suffice:

I. The. majority is in effect overruling some of our earlier cases in point. In St. L. S. F. Ry. Co. v. Brown, 62 Ark. 254, 35 S. W. 225, the plaintiff was a resident of Indian Territory; the tort occurred in Missouri; and the railroad company was sued in Arkansas wherein it had an agent for service of process. The railroad company objected to the suit on a plea not designated as forum non conveniens in 1896, but almost to the same effect. This Court, in a unanimous opinion delivered by Chief Justice Bunn, said, and I quote at length:

“The principal argument of defendant’s counsel is devoted to its contention that, since plaintiff was a resident of the Indian Territory, and since the injury was done in the state of Missouri, and since the case must he. adjudicated according to the laws of the latter state, therefore it is contrary to the public policy of this state to lend the aid of her courts to settle the controversies of parties so situated, and thus the trial court was without jurisdiction. On this particular subject, we cannot better express our views than by quoting from others. In the case of the Chicago, St. Louis & New Orleans Railroad Company v. Doyle, 60 Miss. 977, Chief Justice Campbell, in delivering the opinion of the court, said: ‘The right of action for damages for killing a husband, given by the statute of Tennessee, may be asserted in the courts of this state, because of the coincidence of the statutes on this point, and, independently of this, because a right of action created by the statute of another state, of a transitory nature, may be enforced here, when it does not conflict with the public policy of this state to permit its enforcement; and our statute is evidence that our policy is favorable to such rights of action, insteading of being inimical to them . . .’ —citing Dennick v. Railroad Co., 103 U. S. 11; Nashville etc. R. Co. v. Sprayberry, 8 Baxter 341; Selma etc. Ry. Co. v. Lacey, 49 Ga. 106; Leonard v. Columbia etc. Co., 84 N. Y. 48 . . .

“We append a list of authorities touching each phase of this question, or rather the reason of the rule from the different standpoints from which the question has been discussed. The common law rule is that, where the right of action is transitory in its nature, courts everywhere, when the defendant may be lawfully summoned to appear therein, have jurisdiction; and, when the suit is governed by statute of the state in which the injury is committed, courts of another state, having similar laws, or where it is not contrary to its public policy, will enforce such laws, by the rule of comity. Eureka Springs R. Co. v. Timmons, 51 Ark. 459; Boyce v. Ry. Co., 63 Ia. 70; Morris v. R. I. & Pacific R. Co., 65 Ib. 727; Herrick v. M. & St. L. R. Co., 31 Minn. 11; Tex. & Pac. R. Co. v. Cox, 145 U. S. 593; Wintuska v. L. & N.R. Co.; 20 S. W. 819.”

Our holding in the foregoing case allowed a transitory tort action to be brought in this State wherever service of process could be obtained. Other cases on down through the years reaffirming this rule are: St. L.I.M. & S. Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Viking Frt. Co. v. Keck, 202 Ark. 663, 153 S. W. 2d 166, 152 S. W. 2d 554; and Yockey v. St. L. S. F. Ry. Co., 183 Ark. 601, 27 S. W. 2d 694. In the light of these cases recognizing the right of a plaintiff to bring a transitory tort action in any jurisdiction in Arkansas in which the defendant could be served, I cannot see how this Court can now recede from these holdings and embrace this new and strange doctrine of forum non conveniens.

II. In adopting the rule of forum non conveniensthis Court is engaging in judicial legislation. As here-. tofore stated, our various statutes on venue may Tbe found in § 27-601 et seq. Ark. Stats. After prescribing the venue in various kinds of action, § 27-613 says: “Every other action may be brought in any county in which the defendant ... is summoned.” In Chambers v. Gray, 203 Ark. 858, 158 S. W. 2d 926, we held that plaintiff’s cause of action for injuries sustained in an auto collision in another state was a transitory cause of action and — under said § 27-613 — could be brought in any court in which service could be obtained on the defendant. Section 27-613 has not been changed by the Legislature. But the majority is amending it in the case at bar.

Hon. Robert A. Leflar in his volume on “Conflict of Laws” in § 82 has the following:

“Generally speaking, causes of action for tort are transitory, that is, can be sued upon anywhere that service is had on the defendant tort feasor.”

After pointing out that Arkansas regularly allowed such suits, Dr. Leflar has this to say regarding the rule of forum non conveniens:

“A few states apply discretionary doctrine of forum non conveniens to exclude suits between non-resident parties on foreign causes of action, on the theory that they can be more fairly and less expensively tried at some other forum, but Arkansas has not yet availed itself of this useful exclusionary rule; . . .” and in § 6 of the same volume Dr. Leflar, in speaking further of forum non conveniens, says: “In states like Arkansas where the doctrine has not yet been established, a statute may be necessary to establish it

Now, since 1938 the leading Arkansas authority on conflict of laws has been of the opinion that it would take a legislative enactment to put into effect in Arkansas this doctrine of forum non conveniens in transitory tort actions; yet this Court is now adopting the doctrine without any legislation. Therefore, I insist that the majority is engaging in judicial legislation.

III. The majority adopts the doctrine of forum non conveniens hut leaves it undefined and unlimited. No one can now tell, from the majority opinion in this case, what kind of evidence a defendant would he required to offer to a trial court in order to get that court to hold that the doctrine of forum non conveniens applied. None of the Federal cases would help in the matter because the Federal rule on forum won conveniens is for a transfer of the proceedings and not a dismissal. In U.S.C.A. Title 28, § 1404, the statute reads: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought . . .” It is one thing to transfer a pending suit to some other court nearer to the place of the witnesses — as is the Federal rule —■ and quite another thing to outright dismiss a case. Furthermore, if the dismissal is because the defendant is a non-resident, I maintain that such constitutes a discrimination against him under the United States Constitution previously mentioned.

CONCLUSION

So I reiterate, the majority opinion in adopting the rule of forum non conveniens in regard to transitory tort actions is departing from our ancient holdings, and embracing a new doctrine that embarks us on a sea of “discretionary jurisdiction” which will take us years to adequately define.

         Grovey v. Washington Natl. Ins. Co., 196 Ark. 697, 119 S. W. 2d 503, was not a transitory tort action, but rather a foreign contract matter. There is a big distinction between actions ex contractu and actions ex delecto.

       For cases from some courts either directly holding or pointing in the direction stated, see Eingartner v. Ill. Steel Co., 94 Wis. 70, 68 N. W. 664, 59 Am. St. Rep. 859, 34 L. R. A. 503; Morgan v. Neville, 74 Pa. 57; Steed v. Harvey, 18 Utah 367, 54 Pac. 1011, 72 Am. St. Rep. 789 ; Bourestom v. Bourestom, 231 Wis. 666, 285 N. W. 426.

       Former Dean of the University of Arkansas School of Law and former Justice of the Arkansas Supreme Court.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Amos v. Grimes.
    5-1279
    301 S. W. 2d 745
    Opinion delivered May 13, 1957.

      Shaver, Tackett $ Jones, for appellant.

      Tompkins, McKenzie & McRae, for appellee.
   Sam Robinson, Associate Justice.

This action grows out of a collision between two vehicles on a country road. The appellees, Lois Grimes, and her husband, E. S. Grimes, plaintiffs in the Circuit Court, were traveling west in a pickup truck owned by Mr. Grimes and being driven by Mrs. Grimes. Appellant, Clyde Amos, was driving his automobile east; the two vehicles collided head-on. There was a judgment for the plaintiffs. The jury made a finding that 77% of the cause of the collision was due to the negligence of the appellant, Amos, and that the appellee, Mrs. Grimes, was 23% to blame. Appellant contends there is no substantial evidence of negligence on his part, and that the trial court erred in submitting the case to the jury. We do not agree that there is no substantial evidence of negligence on the part of Amos.

The road on which the mishap occurred is a graveled country road, perhaps wide enough for two lanes of travel, but traveled in such manner that only one lane of travel is habitually used. Vehicles going in both directions use the same lane of travel except, of course, when passing. This well traveled portion of the road, used almost exclusively, is squarely in the center of the highway. The terrain in the vicinity is hilly. Appellees were going up a short, steep hill at a speed of some fifteen to twenty miles an hour when appellant, Amos, came over the hill driving at a rapid rate of speed. He attempted to stop his car, hut could not do so; his automobile skidded a distance of 45 feet and struck the Grimes truck. The hill on which the collision occurred is so steep that the occupants of cars on the opposite sides thereof cannot see a vehicle approaching from the other side until a point is reached almost at the very top of the hill. Amos was familiar with the situation, and the fact that he drove over the hill in the existing circumstances at such a rapid rate of speed is substantial evidence of negligence. Amos testified that he was going 45 miles per hour, and there is other evidence that he was going 65 or 70 miles per hour; pictures of the damaged cars, taken after the collision, indicate that the impact must have been terrific. There is evidence that Mrs. Grimes attempted to get out of the way, but was unable to do so. However, the jury found her partly at fault.

The other points argued on appeal apply to the action of the court in giving certain instructions and in failing to give other instructions. It is contended that the court erred in the failure to give five instructions requested by appellant, and in giving five instructions requested by appellee. Some of the requested instructions were very long and to discuss each of these instructions in detail would unduly extend this opinion. Suffice it to say that we have examined carefully all of the instructions given, and all of those refused, but find no error.

Appellant lays particular stress upon the court’s failure to give a requested instruction submitting to the jury the theory of an unavoidable accident. In support of this contention appellant cites St. Louis-San Francisco Railway Company v. Bryan, 195 Ark. 350, 112 S. W. 2d 641; Booth & Flynn Company v. Pearsall, 182 Ark. 854, 33 S. W. 2d 404; St. Louis-San Francisco Railway Company v. Burns, 186 Ark. 921, 56 S. W. 2d 1027 ; Missouri Pacific Railroad Company v. Medlock, 183 Ark. 955, 39 S. W. 2d 518. But in all of those cases there was evidence that the mishap was due to an unavoidable accident.

In Crown Coach Company, Inc. v. Palmer, 193 Ark. 739, 102 S. W. 2d 853, this court sustained the action of the trial court in refusing an instruction submitting the issue of an unavoidable accident because “no evidence was introduced to show the injury resulted from an unavoidable accident.” Likewise, in the case at bar, there is no evidence of an unavoidable accident. The evidence shows that the collision was due to the negligence of Amos in driving over the hill at a speed which was excessive in the circumstances, or in negligence on the part of Mrs. Grimes in failing to get out of the way in time to avoid the collision; the jury found there was negligence on the part of both parties.

Affirmed.


author: Carleton Harris, Chief Justice. Paul Ward, Associate Justice

text:
    Southwestern Publishing Co. v. Ney.
    5-1276
    302 S. W. 2d 538
    Opinion delivered May 20, 1957.
    [Rehearing denied June 24, 1957]

      Daily & Woods and Shaiv, Jones <& Shaw, for appellant.

      Eichenbaum, Scott & Miller, and Thomas Harper, for appellee.
   Carleton Harris, Chief Justice.

American Television Co., Inc., (hereinafter called American) held a construction permit issued by the Federal Communications Commission for a Channel 5 television station in Fort Smith. H. S. Nakdimen was the sole stockholder and president of American. Appellee, George T. Hernreich, held an option to purchase 50% of the stock of American. Hernreich and American agreed, by written contract, to assign said construction permit to appellant for a monetary consideration subject to approval of the Federal Communications Commission. The assignment agreement obligated appellant, American, and Hernreich to file application seeking FCC’s approval of the assignment, and to further cooperate in preparing and filing additional information or amendments to the application for the purpose of obtaining the Commission’s approval. The assignment provided that the agreement between the parties should be void unless the Federal Communications Commission approved the application for the assignment of the permit by February 1, 1955, except said agreement be extended by the contracting parties. All parties did agree to such extension in writing, setting the new expiration date as April 1, 1956. Shortly after the extension agreement, Mr. Nakdimen died. Appellee, Jerome M. Ney, as chairman of a group styled “Citizens Group for Two Television Stations in Fort Smith,” filed a petition with the Commission asking that the group be permitted to intervene as a party to the proceedings, and requesting that the Commission reopen the record, set the matter for oral argument, set aside the initial decision, and remand the proceedings to the examiner for further hearings. Because of the requests of this group, the Commission, on its own motion, set the matter for oral argument, which was heard on March 20. Since it appeared that a decision on the approval of the assignment might not be rendered before April 1st, appellant sought a further extension from the officers and directors of American and from Hernreich. This was refused. On June 20th, the Commission entered its order providing: “In our view, all the pleadings now before us for disposition, filed by Southwestern, are moot by virtue of the expiration of the assignment contract, and accordingly, they must be denied.” Appellant thereafter filed suit against appellees, later amended its complaint, and subsequently amended the amended complaint, seeking damages in the sum of $250,000. A further prayer was “that it be adjudged and decreed that any interest in or right to acquire the aforesaid television construction permit for Channel 5 at Fort Smith, held by the defendants or either of them, is held unlawfully and is impressed with a constructive trust in favor of plaintiff.” Appellees filed their separate demurrers to the complaint, amended complaint, and amended amended complaint, stating that such pleadings did not state facts sufficient to constitute a cause of action. Said demurrers were sustained by the court and the complaint dismissed; from such action comes this appeal.

Let us first examine the allegations against appellees which appellant relies upon as stating the cause of action. It is alleged that Ney “* * * with full knowledge and understanding of the provisions of said assignment agreement and the duties and obligations therein imposed on the defendant, Hernreich, maliciously and unlawfully interfered in said assignment agreement between the parties thereto and induced the defendant, Hernreich, to join with him in a conspiracy to breach the terms of that agreement to the injury of the plaintiff. * * *” It is alleged that Hernreich, though required by his agreement to cooperate to obtain the approval of the construction assignment, entered into said conspiracy to breach the terms of the agreement; that “* * * All such acts of conspiracy on the part of the defendants were performed with malice and with the purpose of preventing approval of said assignment during the life of said agreement and to the end that said assignment agreement would expire unapproved in order to permit the defendants, in their scheme and plan, as a part of said conspiracy, to acquire said construction permit for their own monetary-gain to the loss of and damage to the plaintiff. As a further part of their said conspiracy, the defendants jointly and severally undertook to persuade and induce the holders and beneficial owners of the stock of American Television Co., Inc., under the Will of Mr. Nakdimen, to cause its officers and directors to decline to execute any further extension of said agreement and so to cause said agreement to expire unapproved by the Commission. * * *” It is further alleged that “* * * the defendants and each of them, separately and together, made trips to Washington, D. C., seat of the Federal Communications Commission, and employed a former attorney of the plaintiff to prepare pleadings to be filed with the Federal Communications Commission containing derogatory charges concerning the plaintiff to the end that the approval of the above described assignment would be delayed before the said Commission until the expiration of said assignment agreement. The defendants did cause to be filed with the Federal Communications Commission pleadings urging and encouraging the Commission to deny approval of said assignment and reciting that should same be denied by the Commission that the defendant, George T. Hernreich, would individually, or in concurrence with the American Television Co., Inc., construct said station under the permit theretofore issued to American Television Co., Inc., * * * and induced numerous and sundry other persons, including employees of each defendant, to join with them in petitions to the Commission in order to withhold, delay and deny approval of said assignment. Said numerous and sundry third parties who were persuaded by the defendants to join with them in said application to the Commission were induced to do so by insincere representations made to them by the defendants that the defendants were acting solely in the public interest in an endeavor to procure two television stations in Fort Smith, Arkansas, and that the defendants had no other interest when, in truth and fact, the defendants’ purpose and design was to acquire the Channel 5 construction permit for their own personal monetary gain and to injure the plaintiff. * * *” Further, “* * * The defendants by written pleadings and other direct and indirect representations persuaded the Commission to hold an oral argument on the said assignment. By .this act and the other acts and tactics performed and committed by the defendants as above recited, they succeeded in causing delays and postponements and interruptions in the normal proceedings of the Federal Communications Commission in its. hearings on the application for approval of said assignment beyond April 1, 1956, thereby succeeding in their plan and conspiracy to prevent final Commission approval of said assignment before the expiration of the last extension of said assignment agreement; and except for said acts of the defendants, the Federal Communications Commission, in the normal course of its proceedings, would have granted final approval of said assignment prior to April 1, 1956. * * *” Still further, “* * * The Federal Communications Commission would have finally approved the assignment to the plaintiff of the construction permit for the operation of a Channel 5 television station in Fort Smith, Arkansas, under the terms of said assignment agreement, in the absence of the acts on the part of the defendants hereinabove alleged, and the plaintiff would have thereupon acquired the right to construct said station under said permit. As a result of the malicious, unlawful, unjustified and concerted acts of the defendants hereinabove alleged, the plaintiff has lost the right to acquire and obtain the construction permit for the operation of a Channel 5 television station in Fort Smith, Arkansas. * * *” The trial court held that no cause of action had been alleged against either appellee.

"We will first dispose of appellee’s argument that the demurrers should be sustained for the reason the entire assignment contract was wholly invalid. This contention is based on the concurrent forbearance agreement between appellant and Hernreich that appellant would pay to Hernreich the sum of $35,000 in return for his agreement not to engage in broadcasting within Fort Smith or any community within a radius of 150 miles for a period of seven years. Appellees contend that this constituted illegal restraint of trade, and the entire agreement was therefore void. This matter was not mentioned by the trial court in its rather exhaustive opinion, and we consider it sufficient to state that the complaint does not put into issue the validity of the forbearance agreement. No one seeks to enforce the agreement, or to rescind or cancel it; i. e., no relief is sought by any party with reference to same.

In holding that no cause of action had been stated against Hernreich, the court said:

“* * * The issue appears to be whether or not an allegation which is not susceptible of proof is to be accepted by the court as one which is well plead and admitted by a demurrer. It appears incumbent upon the court to accept the position that no litigant should be permitted to hold another at bay in court to await trial when the allegations of the complaint are, on their face, mot susceptible of proof. * * * Since it must be conceded that Hernreich was under no duty to agree to an extension, the case must rest squarely upon the proposition that the Federal Communications Commission would have granted the assignment but for the acts of the defendant Hernreich. Is this ultimate issue susceptible of proof? This court must, after full deliberation, answer this question in the negative. In reaching this conclusion, the court is of the opinion that the proof necessary to sustain the plaintiff’s contention could come only from one source, the Federal Communications Commission itself, and learned counsel’s representations, sincere and earnest though they are, cannot convince the court that a Federal agency such as the Federal Communications Commission would either gratuitously, or by order of this court, investigate and rule on what they would or would not have done under all of the contingencies of this situation, and do so simply to accommodate the parties to this lawsuit. A candid and objective appraisal of the many considerations that would be involved in such a Course, without enumeration here, makes it apparent that this requisite avenue of proof would, and as a matter of principle could not be, opened as a course of evidence in causes such as the one at bar. The litigants may speculate and conjecture as to what this Governmental agency would or would not have done if the game had been played differently, but the courts are not a forum for such disputes. * * *”

We entirely concur that Hernreich was under no duty to grant an extension and also agree that in order to obtain a substantial recovery, it is mandatory that appellant prove that, but for the acts complained of, the Federal Communications Commission would have granted the assignment. But we are not here dealing with a matter of proof. We are only dealing with a matter of allegations. Therefore, we are not presently concerned with, whether the allegations can be proved. The reasoning of the trial court as to the difficulties in proving this necessary assertion may well be correct, but whether such averment can be sustained is immaterial at this time. As stated by the court in the case of Weiner v. Eastern Airlines, 330 Mass. 337, 113 N. E. 2d 859, 40 A. L. R. 2d 806: “* * * Whether the plaintiff will be able to sustain by evidence the case made out in the declaration is a matter not to be decided on demurrer. * * *” Likewise, in Attorney General v. Trustees of Boston Elevated Railway Co., et al., 319 Mass. 642, 67 N. E. 2d 676, the court said: “* * * We take the allegations at their face value in determining their sufficiency when challenged by a demurrer. The question is not as to the adequacy of evidence to prove the alleged conduct of the trustees, but is whether, assuming the allegations to be true, the information sets forth a cause of action. * * *” It is well settled by our own cases that a demurrer admits facts that are well pleaded. Wann v. The Reading Company, 194 Ark. 541, 108 S. W. 2d 899. Every reasonable intendment should be indulged to support a pleading. City of Marianna v. Gray, 220 Ark. 468, 248 S. W. 2d 379. Allegations of complaint on demurrer must be given such effect as they appear prima facie to have. Church of God in Christ v. Bank of Malvern, 212 Ark. 971, 208 S. W. 2d 770. The validity of the complaint against Hernreich is not dependent upon the existence of the alleged conspiracy, for his alleged acts, standing alone, constitute a cause of action. We conclude that a cause is stated against Hernreich.

We come now to a consideration of the court’s action in sustaining the demurrer as to Ney. If the complaint states a cause of action against this appellee, it must be on the basis of the alleged conspiracy, wherein it is averred that Ney “* * # with full knowledge and understanding of the provisions of said assignment agreement and the duties and obligations therein imposed on the defendant, Hernreich, maliciously and unlawfully interfered in said assignment agreement between the parties thereto and induced the defendant, Hernreich, to join with him in a conspiracy to breach the terms of that agreement to the injury of the plaintiff. * * *”

Corpus Juris Secundum, Vol. 15, 996, states: “A civil conspiracy means a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means. * * *” In Words and Phrases, there are several definitions of the term. In addition to the one quoted above, (which is the most usual definition), we find at page 425, Yol. 8,: “A ‘conspiracy’ is a combination of two or more persons by some concerted action to accomplish an unlawful purpose.” At page 418 of the same Yolume: “A ‘conspiracy’ is the combination of two or more persons to do something that is unlawful, oppressive, or immoral, or something that is not unlawful, oppressive, or immoral, by unlawful, oppressive or immoral means, or something that is unlawful, oppressive or immoral, by unlawful, oppressive, or immoral means.”

While in some instances, we recognize that an unlawful purpose can be reached through a series of lawful acts, generally the acts which are committed in furtherance of accomplishing the unlawful purpose are either illegal acts, or acts tainted with elements of deceit, trickery or chicanery. The acts attributed to Ney are legal acts. It was not unlawful for him to oppose the granting of the permit — it was not unlawful for Ney to get others to join in the protest — it was not unlawful for Ney to employ an attorney to file with the Commission a petition protesting the approval of the assignment. Though malice is alleged in the complaint, and while in the Iowa case of Kuiken v. Garrett, 243 Iowa 785, 51 N. W. 2d 149, it was held that legal conclusions may properly be alleged where supported by proper allegations, we are unable to say that the allegations herein meet that requirement. Not only were the acts of Ney, standing alone, entirely legal, but such acts were in furtherance of a hearing before a public forum. This conduct is entirely the antithesis of acts generally committed in a plot to injure some individual. Here, there was no “cover up”, nor artifice. Ney proclaimed to the world that he was against the assignment of the contract.

It is true that our Court, as early as 1908, in the case of Mahoney v. Roberts, 86 Ark. 130, 110 S. W. 225, held that persons who aid another to violate a contract with a stranger, whether for the purpose of injuring the latter, or for the purpose of benefiting themselves at the latter’s expense, to his injury, are guilty of an actionable wrong, and are liable for damages. Again in Hogue v. Sparks, 146 Ark. 174, 225 S. W. 291, this Court said: “* * * that if one maliciously interferes in a contract between two parties, and induces one of them to break that contract to the injury of the other, the injured party may institute an action against the wrong-doer. * * *” Other Arkansas cases are cited to the same effect, but when all are analyzed, it appears that in each instance such cases involved either the enticement of laborers from their contract (which is prohibited by statute as well as common law) or the element of trickery, deceit or chicanery was present. For instance, in Mahoney v. Roberts, supra, Roberts and Ma-honey dissolved their partnership, and Mahoney, for a consideration, agreed with Roberts that he would not engage in business in competition with Roberts in Argenta, Arkansas. Mahoney, being unable to engage in said type of business directly, without violating his agreement, conspired with' one Collins to operate the same (type of business) in Collins’ name, and ostensibly as Collins’ business. Collins proceeded to carry out his part of the plan, though Mahoney furnished all equipment and actually owned the business. The complaint alleged a conspiracy to carry out the “fraudulent enterprise,” and sought judgment against Collins, as well as Mahoney, because of said conspiracy. Collins was held liable for inducing and assisting Mahoney to violate his agreement. This is entirely a different set of facts from those alleged in the instant litigation; likewise, the facts in Hogue v. Sparks, supra, are vastly different.

We will not say that a conspiracy, which is to culminate in the commission of an unlawful act, cannot be reached by a series of acts, in themselves lawful, but we do say that the acts alleged here against Ney in furtherance of the alleged conspiracy, do not constitute such as to allege a cause of action.

Civic minded citizens may well petition and appear before tribunals to protest the granting of radio or television permits, -the elimination of air, railway, or bus services, the increase of rates by public utilities, and similar instances too numerous to mention. They may well appear before Congressional and Legislative Committees to voice their opposition to legislation desired by some individual, corporation, or business establishment. We do not desire to establish a rule in this state which would discourage individuals from exercising their privileges as free citizens. As stated by the trial court in its opinion: “# * * The constitutional guarantees of liberty of opinion and freedom of speech would soon be impaired if citizens exercising those rights were to be compelled to defend their actions in expensive litigation, instituted by persons who resented and characterized the exercise of such rights as interference in their private affairs. *' * *” Concluding, when the words “maliciously” and “unlawfully” are removed, the complaint fails to state a cause of action against Ney, and those words, standing alone, do not supply the deficiency. The action of the court in sustaining Ney’s demurrer was entirely proper.

Appellant contends that the court erred in dismissing the amended complaint, as amended, without giving it the opportunity to plead further. The trial court’s opinion was filed October 5, 1956, and the precedent (approved as to form by appellant’s attorneys) was filed on October 11th. Without entering into a detailed discussion of the alleged error, let it suffice to say that the record does not reflect any request for permission to again amend or to plead further. We consider appellant’s contention to be without merit.

For the error in sustaining the demurrer and dismissing the complaint as to appellee Hernreich, the judgment of the Circuit Court is reversed, and the cause is remanded with directions to overrule the demurrer as to Hernreich and for further proceedings not inconsistent with this Opinion.

Justices Ward and Robinson dissent to the reversal as to Hernreich.

Justices McFaddin and George Rose Smith dissent to the affirmance as to Ney.

Paul Ward, Associate Justice

(dissenting). In my opinion the action of the trial court should be sustained as to Hernreich. I just can’t imagine how appellant can ever possibly prove what the Federal Communications Commission would have done. From any angle you look at it, the majority is entering a field of speculation, and we have often said that speculation is no sound basis for a jury verdict. Consequently, as I see it, this court should assume its responsibility to prevent unnecessary litigation with all its attending expense. We have said many times, also, that courts will not do a vain and useless thing, yet I believe the majority is doing just that in this case.

Not only is it incumbent on appellant to prove (in a new trial) that the Federal Communications Commission would have approved the assignment, but it must prove also that the approval would have been given before April 1, 1956. Here is where the majority find themselves in a dilemma. On the above date the Federal Communications Commission either had all the information it desired, or it did not have. In the first eventuality it could have approved the transfer if it had wanted to do so (but it did not). In the latter eventuality it would be ridiculous to predict what the Federal Communications Commission would have done because there is no way of knowing what information it might have received later.

It is significant to note the exact wording in appellant’s complaint. The first clause in paragraph XI reads: “The Federal Communications Commission would have finally (emphasis mine) approved the assignment . . .” As already pointed out, this allegation is not sufficient to state a cause of action.

       Separate forbearance agreements were also entered into between appellant, Hernreich, and American Television Co., whereby the latter two agreed that for a period of seven years they wouldnot engage in broadcasting at Fort Smith or in any community within a radius of 150 miles of said city.

       On September 29, 1955, the hearing examiner of the Commission had approved the assignment of the construction permit to appellant.

       For the purpose only of determining the sufficiency of the pleadings.

         This court has held that to breach a contract is unlawful. Lion Oil Co. v. Marsh, 220 Ark. 678, 249 S. W. 2d 569.


author: J. Seaborn Holt, Associate Justice.

text:
    Stevens v. French.
    5-1268
    302 S. W. 2d 286
    Opinion delivered May 20, 1957.
    [Rehearing denied June 17, 1957]

      McGourtney, Brinton, Gibbons & Seyars, for appellant.

      French & Camp, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves a boundary line dispute. Appellant, Stevens, owns a 40-acre tract in Clay County and appellee, French, his neighbor, owns 26 acres immediately east and adjoining the south two-thirds of appellants’ 40 acres, for a distance of about 900 feet. December 8, 1955, appellants filed suit against French alleging that appellee had constructed a new wire fence some 25 ft. to 40 ft. west of appellants’ east boundary line for a distance of 900 ft. and over on appellants’ land. They prayed for injunctive relief, and that appellee be required to remove the fence. Appellee answered with a general denial and affirmatively pleaded: ‘ ‘ that he did build a fence but that said fence was built on his own property, that said fence was built east of an old boundary fence between defendant’s property and that of petitioners, which old division fence has been in existence for a period of more than twenty years and that the defendant has cultivated, pastured, and used said lands for a period of more than twenty years and that defendant has had open, notorious, continuous, peaceable, and adverse possession of said lands for a period of more than twenty years, and further that petitioners have no valid claim whatsoever on the lands upon which said fence was built.”

Trial was had and the court found for appellee, French, and dismissed appellants’ complaint. This appeal followed. For reversal appellants contend that the preponderance of the evidence is against the chancellor’s findings and “if the line between the properties has not been established, the court should have ordered it established.”

The evidence shows that sometime in 1955 appellee, French, built a new “barbed wire” fence on his land between his land and appellants, on the north-south boundary line between these properties for a distance of approximately 900 ft. This new fence was built east of the old boundary division fence. French testified that he has owned his 26 acre tract since 1936, and has paid the taxes since he acquired it — some 21 years; that the- old fence to his knowledge had been-up since 1936; that he has owned, used and claimed this land-at'all times' up to the old fence and no question arose as to the boundary line until appellants had a survey made in August 1955 by Knight Laird. Appellee’s son, Otis, corroborated his father’s testimony, and there was also other testimony on behalf of appellee of a corroborating nature, which we do not detail.

Appellant,' Stevens* testified that he acquired his 40 acre tract in July 1949 and at that time there was an old fence separating the two tracts in question; that he knew nothing about his property prior to 1949 and had seen it only some Wo or three weeks before he bought it.

Laird testified on behalf of appellants that he had a Bachelor of Science degree in engineering from Duke University and has had experience in land surveying. He was not the county surveyor of Clay County; that he surveyed the boundary line in question solely at appellants’ request. He further testified that: (appellants’ abstract) “The point I used in starting my survey was the northwest corner of section twenty, as shown me or told me by men who helped Jim Ryan on survey work through there; the center of the bridge and the center of the ditch was the section corner; that is what they told me as to where that corner was; as to physical evidence or markers of any kind, the witness trees have all been cut down years since, but that corner has been maintained though by knowledge of those who helped on the survey when the trees were there; the starting point I took was (purely from hearsay) from what people told me.” The plat of his survey was not introduced in evidence. Appellant informed appellee that he was having this survey made and appellee made no objection.

. . After reviewing all the evidence we have concluded that appellants have failed to show, by a preponderance there.of that the new fence in question was on their land. On the contrary we hold that the preponderance of the testimony shows that this fence was built on appellee’s tract, title to which he has established by a preponderanee of the evidence hy adverse possession (§ 37-101 Ark. Stats. 1947). See Harris v. E. B. Mooney, Inc., 211 Ark. 61, 199 S. W. 2d 319. We think Laird’s survey has little or no probative value for the reason that he did not connect his survey with established monuments but the starting point was established by pure guess and speculation, as shown by his own testimony above, and is entirely too indefinite.

Finding no error, the .decree is affirmed.


author: Minor W. Millwee, Associate Justice.

text:
    Trimble & Williams v. State.
    4871
    302 S. W. 2d 83
    Opinion delivered May 20, 1957.

      Charles L. Carpenter and Terral & Rawlings, for appellant.
    ■ Bruce Bennett, Atty. General, and Russell Morton, Ass’t. Atty. General, for appellee.
   Minor W. Millwee, Associate Justice.

.The appellants, Warren “Son”'Trimble and Bobby Dale Williams, were convicted of the crime of robbery by forcibly taking and stealing an automobile from K. C. Parker on March 3, 1956.

At the trial K. C. Parker testified he was asleep in his car which was parked at a cafe about. 1 :.30 A.M. when appellants attacked him, demanded his money, and drove his car. to. the airport where he escaped and notified the police. He also' testified that,, acting upon information he gave the police, appellants- were arrested about three days later and placed in the county jail where he identified them as the parties who robbed him.

The only other witness for the .State was a deputy sheriff who was permitted to testify, over appellants’ objections and exceptions, that he was present when K. C. Parker came to the county jail and made a “lineup” identification of the appellants as the parties who had robbed him. The sole issue is the admissibility of this testimony.

The authorities are divided as to the competency o\ evidence of so-called “extrajudicial identification” in a trial where the accused’s identity as the guilty party is in dispute. Most courts subscribe to the proposition that the prior consistent statements of a witness who has not been impeached are not admissible in evidence Tor the purpose of corroborating or bolstering his testimony. We are committed to the view that evidence of extra judicial identification is incompetent as either substantive or corroborative evidence if there has been no impeachment of the prosecuting witness or his testimony.

In Gill v. State, 194 Ark. 521, 108 S. W. 2d 785, we said: “This character of evidence is referred to in the law books as extrajudicial identification and, according to the weight of authority, is not admissible even though the identifying witness or witnesses had been impeached by any method known for impeaching witnesses. Burks v. State, 78 Ark. 271, 93 S. W. 983, 8 Ann. Cas. 476. There, is no authority whatever for admitting an extrajudicial identification as original evidence of guilt. This court said in the case of Warren v. State, 103 Ark. 165, 146 S. W. 477, Ann. Cas. 1914B, 698, that: ‘But nowhere, so far as we can ascertain, has it ever been held that a so-called extrajudicial identification is admissible as original evidence; and it was, therefore, in any view of the case, inadmissible for there was no attempt to impeach the witness by contradictory statements or otherwise. The testimony was introduced as original evidence, .and it. was clearly inadmissible, for it was hot competent to corroborate the identifying witness by proof of former identification’.” As Judge McCulloch said in Burks v. State, supra: “After all, the effect of proof of previous consistent statements could only be to corroborate the statement of the witness under oath by his own words uttered on another occasion. It would add nothing to his statement upon the witness stand, either as to his testimony on the main issue, or as to his denial of the contradiction.” See also, Rogers v. State, 88 Ark. 451, 115 S. W. 156, 41 L. R. A. (N. S.) 857; Birones v. State, 105 Ark. 82, 150 S. W. 416; and cases collected in annotations in 70 A. L. R. 910 and 140 A. L. R. 176.

Admission of the testimony of the deputy sheriff resulted in prejudicial error. The judgment is accordingly reversed, and the cause remanded for a new trial.


author: George Rose Smith, J.

text:
    Delony v. Rucker. City of Little Rock v. Little Rock and Westwood Water & Light District No. 2.
    5-1248
    302 S. W. 2d 287
    Opinion delivered May 20, 1957.
    5-1249
    Opinion delivered May 20, 1957.

      Spitzberg, Bonner, Mitchell & Hays, for appellant.

      Martin, Dodcls & Kidd, for appellee.

      Spitzberg, Bonner, Mitchell $ Hays, for appellant.

      Talley & Owen, Max Howell and Gene Worsham, for appellee.
   George Rose Smith, J.

These two appeals involve the validity of § 7 of Act 321 of 1955, which reads: “A municipality owning a waterworks system- shall operate its entire system in a governmental and not proprietary capacity. The municipality shall have the option of extending its services to any consumer outside the municipal boundaries, but it shall not be obligated to do so. No municipality shall be obligated to supply any fixed amount of water or water pressure to non-resident consumers, nor shall a municipality be. obligated to increase the number or size of, or change the location of any mains or pipes outside its boundaries. Water may be supplied-to non-resident consumers at such rates as the Legislative Body of the municipality may deem just and reasonable, and said rates need not be the same as the rates charged residents of the municipality. AIL laws in conflict with this section are hereby, repealed. ” Ark. Stats. 1947, § 19-4257. . oi

The specific issue here is. whether .the Little Rock municipal waterworks may charge, its nonresident consumers higher rates than those paid by residents of the city. For many years after the municipal plant was acquired in 1936 resident and nonresident customers were charged alike.. In 1954 the city council, to finance the acquisition of an additional water supply, undertook the preparation of a new rate schedule. Rate specialists were employed, and public hearings were held. In April of 1955 the city council adopted an ordinance putting the recommended schedule into effect. In addition to increasing the charges within the city limits this ordinance provides that the graduated rates for nonresident patrons (except those in the highest bracket of consumption) shall be 25 per cent more than the corresponding rates within the city.

By these two suits the appellees seek a declaration that the statute and ordinance are void and an injunction against the collection of higher rates outside the city. In Case No. 5-1248 W. S. Rucker, who owns a tourist court near Little Rock, assérts that the statute and ordinance violate the due process clause, the equál protection clause, and other provisions of the state arid federal constitutions. Similar allegations are made in Case No. 5-1249, whieh is a class suit brought by three nonresident domestic consumers and by a water improvement district, the latter also- asserting that the increased rate schedule impairs the obligation of a coritract which is in force between it and the city. In the courts below it was held in each case that the challenged legislation is void and that the collection of higher rates outside the city should be enjoined.

Neither the statute nor the ordinance is void on'its face, as the appellees contend. Granted that the rates charged by'a municipally owned public utility must- be reasonable and' free' from arbitrary discrimination, it does not follow that the exaction of an increased charge for services supplied beyond the city limits is prima facie invalid. A city’s first duty is to its own inhabitants, who ordinarily pay for the municipal plant, directly or indirectly, and who therefore have a preferred claim to the benefits resulting from public ownership. Upon this reasoning it is held by the decided weight of authority that “the municipality, in the absence of any legislative limitation, may make a discrimination as to rates based solely on the political boundaries of the municipality.” Case note, 101 Pa. L. Rev. 160; McQuillin, Municipal Corporations (3d Ed.), § 35.37; Collier v. Atlanta, 178 Ga. 575, 173 S. E. 853; Louisville & Jefferson etc. Dist. v. Seagram, 307 Ky. 413, 211 S. W. 2d 122, 4 A. L. R. 2d 588; Childs v. City of Columbia, 87 S. C. 566, 70 S. E. 296, 34 L. R. A. N. S. 542. The two cases following the minority view are readily distinguishable from the cases at bar. In City of Texarkana v. Wiggins, 151 Tex. 100, 246 S. W. 2d 622, the court held that higher rates for nonresidents are not permissible in the absence of statute; in Arkansas Act 321 of 1955 provides that statutory authority. And in City of Montgomery v. Greene, 180 Ala. 322, 60 So. 900, the court stressed the fact that by Alabama law a municipality operates its waterworks as a private corporation and not in the exercise of the power of local sovereignty. In Arkansas, however, the municipality is held to be acting in its governmental capacity, and Act 321 reaffirms this rule. North Little Rock Water Co. v. Water Works Com’n of Little Rock, 199 Ark. 773, 136 S. W. 2d 194. Thus it is fair to say that no decision supports the view that the Little Rock rate schedule is void on its face.

In holding that the ordinance before us is ostensibly valid we do not imply that there is no limit to the rates that a city may impose upon its nonresident patrons. Although that view prevails in South Carolina, Childs v. City of Columbia, supra, as a general rule it is held that the municipality’s charges must be “fair, reasonable, and just, uniform and nondiscriminatory. ” McQuillen, loc. cit.; cf. City of Altoona v. Pennsylvania Public Utility Com’n, 168 Pa. Super. 246, 77 A. 2d 740. Act 321 recognizes the traditional view, for it provides: “Water may be supplied to non-resident consumers at such rates as the Legislative Body of the municipality may deem just and reasonable . . .” Needless to say, the reasonableness of the rates fixed by the city council is a matter open to judicial review. North Little Rock v. Rose, 136 Ark. 298, 206 S. W. 449; Camden Gas Corp. v. Camden, 184 Ark. 34, 41 S. W. 2d 979.

The burden of proving the city’s rate schedule to be arbitrary and unreasonable rested upon the plaintiffs, for the ordinance is entitled to the presumption of validity that legislative enactments ordinarily receive. Camden Gas Corp. v. Camden, supra. In the cases at bar the plaintiffs contended that the variation between urban and suburban rates is unauthorized as a matter of law; no testimony was offered to show that the difference is unjustified as a matter of fact. On the latter point the city, though not having the burden of proof, adduced testimony that tends to sustain the higher charges imposed upon nonresident consumers. This proof shows that on the average the service to nonresidents involves greater expense to the city than to residents. The filter plant, from which the water is distributed, is inside the city. It is obvious that in any given direction the suburban areas lie farther from this plant than the intervening urban territory. These greater distances are shown to entail increased costs in the installation and maintenance of water mains and in the pumping of water. That the outlying districts are less densely populated than the city itself involves a greater average expense in the reading of meters and the making of service calls. There is in the record no contradiction of the witness Jackson’s statement that “prior to the 1955 ordinance we discriminated against our city customers in favor of our nonresident customers.” On the undisputed evidence we must conclude that the appellees failed to- meet the.burden of proving the new rate schedule, to be unreasonable and arbitrary.

The separate contention made by the water improvement district may be answered quickly. ' In 1925 the private company which then owned what is now the municipal waterworks system agreed to sell water to the residents of this district at the same rates that were then, or might later be, in effect within the city. The performance of this contract was assumed by the municipality when it purchased the system in 1936. It is now asserted by the district that the imposition of the higher nonresident rates constitutes an unconstitutional impairment of the obligation of its contract. To this contention there are two answers. First, an agreement fixing public utility rates to be charged in the future is subject to the sovereign’s reserved power of rate regulation and must yield to the exercise of that power. Camden v. Ark. Light & Power Co., 145 Ark. 205, 224 S. W. 444; North Little Rock Water Co. v. Water Works Com’n of Little Rock, supra. Second, this particular contract contains no provision fixing the period of its duration; it is therefore terminable at the will of either party. Fulghum v. Town of Selma, 238 N. C. 100, 76 S. E. 2d 368; Childs v. City of Columbia, supra.

Reversed.

Millwee, J., dissents.


author: Paul Ward, Associate Justice.

text:
    Mode v. Henley.
    5-1190
    302 S. W. 2d 73
    Opinion delivered May 20, 1957.

      John F. Park and House, Moses & Holmes, for appellant.

      Bailey, Warren & Bullion, for appellee.
   Paul Ward, Associate Justice.

This litigation arises out of a dispute over a small triangular parcel of land in the Northwest % of the Southwest % of Section 18, Township 3 North, Range 13 West, in Pulaski County. Highway 65 runs east and west across the north portion of the said Northwest % of the Southwest %•

Appellee Henley, who was the plaintiff below, claims title to a rectangular strip of land which, for later reference and convenience, we will describe as follows : Beginning at a point hereafter referred to as (A) where the south line of Highway 65 intersects the west line of the above described 40 acres, thence east along the south line of Highway 65 218 feet to a point called (B), thence south 807 feet to a point, thence west 218 feet to a point, thence north 807 feet to the point of beginning.

On February 28, 1948 appellee Henley received a deed from Orville E. Bennett in which the land was described' as follows:

“The North four (4) acres of all that part of the fractional NW %, SW % of Section 18, Township 3 North, Range 13 West, that lies south of the right of way of Highway No. 65 (Little Rock and Conway Highway), and west of the county road leading from said highway south across the NW %, SW % of said Section 18; said plot of ground being 807 feet long north and south, and approximately 218 feet wide on the north and south end thereof.”

Bennett purchased the land, by the same description, in 1946. Appellee’s chain of title goes back to about the year 1934 (to a common source with the title of appellants) with the land always being described as above set forth.

The difficulty giving rise to this litigation comes about in this way. In 1934 it was only 120.7 feet from the point (A) heretofore described to the west line of the “Crystal Hill Road” which, at that time, left Highway 65 and ran in a southeasterly direction for approximately 115 feet to where its course changed to due south. However, when appellee received his deed in 1948 that portion of the Crystal Hill Road first above described was no longer in existence and all traces of it had disappeared. Just when all trace of this part of the road disappeared does not clearly appear, but it was some time after 1936 and before 1948 and most likely before 1946. Some time after 1936 Crystal Hill Road was changed to run due north to its intersection with Highway 65. This change in the road has resulted in confusion relative to the title of the triangular parcel of land (or a part of it) lying somewhere between the present location of Crystal Hill Road and its former location.

Appellee, Henley, takes the position (a) that he has record title to all the rectangular parcel of land (218 feet by 807 feet), or if not, (b) that he has' acquired title to said parcel by adverse possession. Appellant, Mode, contends (c) that he has a good record title to the small triangular parcel, in the northeast corner of the rectangle, and if not, then (d) he has title by adverse possession. After the introduction of voluminous testimony and exhibits, the trial court held in favor of appellee, Henley, and quieted his title to the rectangular parcel of land above described, which, of course, includes the disputed triangular parcel, and the trial court also ordered appellant, Mode-, to remove a building which he had erected on the triangular parcel of land which is in dispute. After a careful examination of the record we have concluded that the trial court was correct and that its decree must be affirmed.

(a) In our opinion appellee Henley cannot rely on his record title. When the land which he now claims was first described many years ago the Crystal Hill Road limited the conveyances to all the land on “the west side thereof,” which, as before set out, consisted of approximately 120.7 feet on the north side. Such a description, at that time, did not convey any land east of the Crystal Hill Road. See: Paschal v. Swepston, 120 Ark. 230, 179 S. W. 339, where in speaking of descriptions, it was said that “distances must yield to courses, and courses to monuments.”

(b) The testimony showing that appellee had adverse possession of the disputed parcel of land for more than 7 years before this litigation orginated is not exactly satisfactory but we cannot say that the chancellor’s finding on this point was against the weight of the evidence. To begin with, it is easy to understand how appellee could have in all good faith thought he owned the triangular parcel of land fronting 218 feet on Highway 65, because, when he got his deed in 1948, there was nothing to indicate that any of the land might lie east of Crystal Hill Road. This fact, while it does not strengthen his record title, must be considered in connection with his claim of adverse possession. Bennett testified that he thought he was getting’ the full rectangular parcel of land, that he had it- surveyed, and that he erected a marker or stake at the northeast corrier which was 218'feet east of the point heretofore designated as (A)-. Appellee testified that when he got his deed in 1948 he had the land surveyed and marked off 218 feet frontage on Highway 65. He further stated that Mr. Bennett and a Mr. Jack Milam were with him when he measured the line by a steel tape, and that he had claimed and occupied the full 218 feet frontage since February 1948. He further testified that he spent something like $7,000 improving his property. It appears that that portion of the rectangular parcel just south of Highway 65 is much lower than the surface of the highway, and that appellee and Bennett over the years placed thereon a large amount of dirt. We get the impression that this dirt was placed on the entire 218 feet frontage adjacent to Highway 65. At least the contrary was not made to appear upon cross examination. When he learned that Mr. Mode was thinking of erecting a building close to the east line of his property appellee marked off boundaries of the land that he was claiming and advised Mode not to encroach thereon. Appellee admits that there is a strip of land approximately 30 feet wide between the east line of his property and the west line of Crystal Hill Road (as now located) to which he does not claim title. Jack Milam testified that he was with appellee in 1948 and that they found he had 218 feet frontage on Highway 65. He says that they measured from the point (A) heretofore mentioned along the south line of the highway for 218 feet and that they drove a stake down at that point. He further stated that the only old road which he could see or knew anything about was one that apparently went down to some cabins which had been built on the rectangular parcel of land. The record discloses that several buildings had been placed on the rectangular parcel of land by appellee and his predecessors. It seems that there was one large stucco building near the north end of the property and several small ones to the south. Exhibit No. 3 introduced into the record shows that one of these cabins was located within 10 feet of the east line of the rectangular parcel heretofore described. Since nothing was brought out on cross examination to discredit the above testimony it was sufficient, we think, to sustain the.findings of the chancellor that appellee had-.claimed and occupied the entire rectangular parcel of land for more than 7 years, and that the chancellor was correct, in quieting title thereto in appellee.

(c) Appellants’ claim to a record title covering the lands in dispute cannot be sustained for the reason that the description upon which they depend is not definite. It reads:

“A part of the NW % of the SW % of Section 18, Township 3 North, Range 13 West, in Pulaski County, Arkansas; more particularly described as follows, to-wit: Beginning at the northeasterly boundary line of the old Crystal Hill Road; thence east 98 feet; thence south 162 feet to a point; thence northwest 220 feet to the point of beginning. ’ ’

From the above description it is impossible to locate the beginning point and there is nothing to show that the land is adjacent to Highway 65.

(d) Appellant makes no serious effort to establish a title to the disputed land by adverse possession. There is no testimony that the land in dispute was occupied by anyone other than appellee until appellant began erecting a building shortly before this litigation began.

Therefore we conclude that the trial court was correct in ordering appellants to remove the encroachments from appellee’s land and in quieting appellee’s title to a rectangular parcel of land fronting 218 feet on Highway 65 as correctly and more particularly described in the trial court’s decree.

Affirmed.


text:
    Garland County Board of Election Commissioners v. Ennis.
    5-1289
    302 S. W. 2d 76
    Opinion delivered May 20, 1957.

      R. Julian Glover, for appellant.

      E. C. Thacker, for appellee.
   Paul Ward, Associate Justice.

On September 18, 1956, a petition was filed in the Garland County Court, signed "Garland County Board of Election Commissioners, By R. Julian Glover, its Attorney.” In this petition it was alleged that, due to changes in modes of travel and in population, etc., certain rural townships in the county "should be abolished, annexed and consolidated as follows:” (Here is set out in detail the proposed changes in several townships.) The prayer was that the matter be set for hearing by the Court on October 2,1956, after advertising notice of said hearing for two weeks in a newspaper. Following the petition, in the record, appears (with no filing date) a petition signed by 28 people asking to retain the voting place in Buckville Township.

On October 2, 1956 E. C. Thacker as attorney for a number of affected citizens filed a motion to continue the hearing until after the November 1956 election. This motion was evidently granted, because the Board of Commissioners (appellants) filed an amendment to their petition (affecting certain townships) on November 20, 1956, and on thé same day, respondents (appellees) filed a response to the petition, and also a motion to dismiss. Among other things, it was stated that the County Board of Election Commissioners was not a legal entity and had no authority to institute such an action.

On December 5,1956 the matter was presented to the County Court on the above pleadings and on ‘ ‘ testimony ore tenus on behalf of the petitioners and protestants,” and the Court found “That the petition and amended petition of the petitioners should be granted as changed and set out in this order.” (The changes in the several townships are set out in detail.) On the following day respondents filed an affidavit for an appeal to the Circuit Court which was granted on the 17th of December, 1956.

In the Circuit Court, appellants filed an amendment to their petition, on January 8, 1957, setting forth the names of the County Board of Election Commissioners, and stating that they were qualified electors and taxpayers of Garland County.

On January 24, 1957 the matter came on for hearing on the pleadings and the transcript from the County Court. The trial Court took the view that there was no necessity for it to hear the cause upon its merits, for the reasons that the County Board of Election Commissioners lacked legal capacity to bring the action in the County Court, and also that the amendment to the petition filed in the Circuit Court should be stricken. The Court thereupon reversed the judgment and action of the County Court and dismissed the cause of action. This appeal follows.

Under our vieiv of this matter it is unnecessary to decide whether the County Board of Election Commissioners is a legal entity and as such had the right to institute and maintain the cause of action, or whether appellants had a right to amend their petition after the ■ .appeal from the County Court • had been lodged in the- Circuit Court.- : There is no question we think but that this.matter was properly before the County .Court regardless of who was the initiating party.- Under Ark. Stats. § 18-101 the County Court itself could have initiated- this proceeding. This section reads as follows: ‘ ‘ The county court of each county in this state, shall from time to time, as occasion may require, divide the county into convenient townships, subdivide those already established, and alter township lines.” Moreover the protestants (appellees) themselves appeared in the County Court and sought affirmative relief. When the County Court’s judgment was adverse to the respondents they had a right under Ark. Stats. § 27-2001 to prosecute an appeal to the Circuit Court which they did in this case. When the cause of action reached the Circuit Court the matter then should have been heard de novo as provided by Ark. Stats. § 27-2006. In the case of Barker v. Wist, 163 Ark. 511, 260 S. W. 408, this court reiterated that “. . . appeals have been uniformly granted as a matter of constitutional right from all judgments of the county court to the circuit court, and no distinction has been made between administrative matters and judicial causes, and that appeals were heard de novo.”

It was therefore the duty of the Circuit Court to hear any evidence that either side desired to present.

In the order of the County Court it is stated that the matter was heard on oral testimony. We presume, since such oral testimony is not included in the record before us, that it was not in the transcript on appeal to the Circuit Court. If however such testimony was in the transcript on appeal to the Circuit Court and if no other testimony is presented, the trial court should make its decision on the same testimony and pleadings that were presented to the County Court, as was done in the Baker case, supra.

The cause of action is therefore reversed and remanded to the Circuit Court with directions to proceed in. á mariner consistent with this., opinion.


text:
    Eddy v. City of Buckner.
    5-1319
    302 S. W. 2d 85
    Opinion delivered May 20, 1957.

      Wendell Utley, for appellant.

      Henry B. Whitley, for appellee.
   Sam Robinson, Associate Justice.

The City of Buckner, Arkansas adopted an ordinance submitting to the voters of the city the question of a $12,000 bond issue to finance the construction of a water system. In the case at bar, the appellant, N. L. Eddy, is contesting the validity of the bond issue. The chancellor made a finding in favor of validity, and Eddy has appealed.

Appellant contends there was error in the schedule of bond maturities as set out in the notice of the special election caused to be published by the Mayor, and it is further maintained that the ballot title contained a similar error. Appellant says that, notwithstanding the fact that all of the citizens voting on the question cast their ballots in favor of the bond issue, it was rendered invalid by the alleged errors. The ordinance provides for a $12,000 bond issue, and the maturity dates of the bonds as set out in the ordinance are as follows:

“In the year 1960 $500; in the year 1962 $500; in the year 1964 $500; in the year 1966 $500; in the year 1968 $500; in the years 1970 to 1984, both inclusive, $500; in the years 1985 and 1986, both inclusive, $1,000. ’ ’

The Sheriff’s proclamation of the election gave the correct total of bonds to be issued and the correct maturity dates, as provided by the ordinance. The maturity dates as shown by the notice published by the Mayor, and the maturity dates appearing on the ballot title are incorrect. They are as follows:

“The question to be voted upon at said election is whether or not the City of Buckner, Arkansas, will issue $12,000 in negotiable serial, coupon bonds bearing interest at not in excess of 3%%, due as follows:

“In the year 1960, $500; in the year 1962 $500; in the year 1964 $500; in the year 1966 $500; in the - 1968 $500; in the years 1970 to 1984, both inclusive, $1,000.”

The notice published by the Mayor and the ballot title were correct with reference to the total amount of bonds to be issued: $12,000. But, it will be seen that, according to the incorrect maturity dates, the bonds add up to $17,500; hence, if the voters were misled at all it was to the effect that a larger amount of bonds were to be issued than the amount authorized. If the voters had been led to believe that the bond issue would be for a smaller amount than the actual amount of bonds to be sold, then they would have a legitimate cause of complaint; but it is hard to conceive of any one complaining that he was misled into voting for a larger amount than would be issued. This would be like a person protesting the installation of the water system because it did not cost more. In the Harvard Law Review, Volume 70, Number 6, page 1079, it is said: “But most courts have recognized that a defect in the statement of the technical financial provisions of a bond issue is unlikely to affect the choice of the electorate and have thus regarded such defects as insubstantial.”

The City of Buckner has a population of about five hundred. There were seventy-four citizens who cast their votes in favor of the bond issue; there were no votes against it. The complaint does not allege that any one was misled by the mistakes as to the maturity dates of the bonds, as shown in the publication of notice by the Mayor or in information appearing on the ballot.

In discussing the subject of election on indebtedness, or bond issues, it is said, in McQuillin Municipal Cor porations, 3rd Edition, Volume 15, page 279: “While a taxpayers’ suit may he maintained to test the validity of the election, in the absence of fraud, or attempt to mislead the voters, or express declaration in the law to the contrary, mere irregularities, which do not prevent a full and free expression of opinion of the will of the electors, and do not affect or change the result, will not invalidate the election.”

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Streuli v. Wallin-Dickey & Rich Lumber Co.
    5-1290
    302 S. W. 2d 522
    Opinion delivered May 27, 1957.

      Mann & McCulloch, for appellant.

      J. H. Spears, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves only the question as to whether appellee, Wallin-Dickey & Rich Lumber Company, is entitled to a materialman’s lien in the amount of $1,571.52 against-the real estate on which appellants, Ruby B. Streuli and R. A. Streuli have a motel and restaurant.

Disregarding earlier purchases, which have no bearing on this appeal, the Streuli’s began a round of construction on June 17, 1953. Construction continued fairly regularly thereafter with items being furnished until February 16, 1954. The record reflects that no items were furnished Mrs. Streuli after February 16, 1954, until December 13, 1954, and the last item charged to appellants was under date of January 26, 1955. The amount due appellee for materials furnished prior to December 13th was $1,545.33. Appellants contend, and so contended before the trial court, that for appellee to be entitled to a lien for this amount, same should have been filed within 90 days from February 16, 1954. The lien was filed on April 6, 1955. Appellee has consistently contended that the lien filed relates back and covers all of the materials furnished. At the conclusion of the trial, the Chancellor granted appellee judgment for $1,571.52, and impressed a lien on certain real estate upon which the aforementioned buildings are located. From such action of the court, in declaring the judgment a lien, comes this appeal.

Section 51-613 of Ark. Stats. (1947) Anno, provides as follows:

“It shall be the duty of every person who wishes to avail himself of this act to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within ninety (90) days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due-or owing to, him, after allowing all credits, and containing a correct description :of the property to -be charged .with said -lien, verified by affidavit.” ,

Under oür' decisions, there appear tó be two exceptions to the above statutory’requirement. The first exception is where the items were furnished under a definite contract between the parties, and the second exception is where the items were furnished under a ‘ ‘ running” or open account, in which there was no specific contract between the parties, but under circumstances in which this court held the statute not to apply. The first exception applies to cases where the owner and materialman contract for the materialman to furnish material for’ the construction of a particular structure. Perhaps items are furnished over a considerable period of time, and the lien is not filed until the last are furnished. We have uniformly held that if the last items furnished are a part of the original contract, the materialman may wait until the last is delivered before filing his lien, and in such case, the lien will relate back and cover all items furnished from the beginning. Planters Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999. In the instant cause, it is admitted there was no contract between the lumber company and the Streulis. Appellee’s case therefore must come within the second exception, and it (appellee) relies largely upon Kizer Lumber Co. v. Mosely, 56 Ark. 544, 20 S. W. 409. There, materials were furnished on nine different days . . . March 11th, 23rd, 24th, 28th, April 1st, 4th, 7th, and 14th, and May 4th, and the account to secure a lien was filed with the clerk of the court on July 8th. The amount claimed was $184.10, though only $21.26 was due for lumber furnished within 90 days before the filing of the account. Quoting from the Opinion:

“* * * When the defendant purchased of the plaintiffs the first lot. of lumber, he made no contract to buy any other material, but said to them that he might need more He did need it, and called upon them from time to time to furnish the same, which they did, and charged it to him on. account. ■ It was furnished at short intervals,* and it seems, was appropriate to the progress of his house, and he used it in building the same. The presumption is, it was furnished under one contract; and the amounts due for the same should be treated as one demand. The consequence is, the time for filing the account for all the materials furnished commenced running from the date of the last item of the same, and plaintiffs have a lien for the whole of ^ * * * ? ?

The rule was further stated by the Court in the following language:

“* * * If, however, he began to furnish ‘without any specific agreement as to the amount to be furnished,’ or the time within which they were to be furnished, and there was a ‘reasonable expectation that further material’ would ‘be required of him’, and he was ‘afterwards called upon from time to time to furnish the same,’ he should file it within ninety days after the last item was delivered. * *

In the cause presently before us, the record does not reflect that at the time of the last purchase in February, 1954, anything was said by Mrs. Streuli to the effect that she might need more materials. Nor does the record reflect that there was a “reasonable expectation that further materials” would be required. It might be added that 10 months would hardly constitute a “short interval,” but the first points control the litigation.

The evidence in this cause, as introduced by appellee, only reflects that Wallin-Dickey & Rich Lumber Company sold the materials and delivered them to appellants. Mrs. Streuli testified that the materials were used in various improvements of the premises. The evidence in nowise reflects that these last improvements were contemplated either at the time of the original purchase, or on February 16, 1954, when the purchases ceased until the following December.

To hold that appellee is entitled to a lien from the evidence before us, would have the same effect as saying that an individual can obtain his materials, build a house, complete same as he had planned, fail to pay the materialman, and, after a long number of months, or perhaps years, deciding that he wants to add a room, purchase material from the same materialman, again fail to pay, and the materialman is then entitled to file his lien, not only for the last material furnished, but for all that furnished in the original construction of the house. Such a holding would extend the recognized exceptions much farther than our present cases allow.

Summarizing, the burden was on appellee to either prove compliance with the statute or that it was entitled to its lien under the exceptions heretofore set out. This burden of proof has not been met except as to $26.19, which covers the balance due on materials bought from December 13, 1954, through January 26, 1955, and which purchases accordingly were made within 90 days of the filing of the lien. This item is not disputed by appellants, who have tendered said amount with interest. Under the conclusions reached, the question as to the priority of liens, involving the mortgage holder, Woods, becomes moot.

The cause is accordingly reversed and dismissed.

       Other issues were raised by the' pleadings in the trial court and acted upon, but are not here on appeal.

       The transactions between appellants and appellees were handled by Mrs. Streuli.

       Emphasis supplied.

       Emphasis supplied.