author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Howard M. ARMSTRONG v. Mary Nelle ARMSTRONG
    5-5264
    454 S. W. 2d 660
    Opinion delivered June 1, 1970
    [Rehearing denied June 29, 1970.]

      Carpenter, Finch ir McArthur, for appellant.

      W. J. Walker, for appellee.
   Carleton Harris, Chief Justice.

On November 14, 1967, the Pulaski County Chancery Court, First Division, entered a decree granting an absolute divorce to Mary Nelle Armstrong, appellee herein, from appellant, Howard M. Armstrong. Incorporated into the decree and made a part thereof was a written agreement between the parties entered into on November 13, 1967, whereby appellant and appellee agreed in full upon a property settlement. Thereafter, Mrs. Armstrong filed a motion asserting that appellant was delinquent in child support and alimony payments and subsequently she sought judgment for the arrearage and asked that appellant be cited for contempt. Subsequently, Dr. Armstrong filed a petition seeking a reduction in the payment “of any and all sums” to appellee, alleging that he had been ill, unable to perform surgical operations, and accordingly his income had been drastically reduced and he was entitled to a reduction in the payment of alimony, support, and maintenance to appellee. On July 2, 1969, the court found that Armstrong was in arrears in his alimony in the sum of $3,843.82, and judgment in that amount was given Mrs. Armstrong, as well as an attorney’s fee for her attorney. Notice of appeal of this judgment was given by appellant. On August 29, 1969, a Special Chancellor entered a decree finding that in addition to previous judgments, Armstrong was in arrears in payments of alimony due Mrs. Armstrong in the sum of $2,085.00, and judgment was given her for that amount as well as an additional judgment for $500.00 due Mrs. Armstrong for repayment of a debt, together with attorney’s fee. The court also found that:

“The agreement between the parties incorporated in the decree is contractual and the payments thereunder due the plaintiff are not subject to reduction by the court.”

In accordance with this finding, appellant's petition for reduction in alimony payments was denied. From this decree, appellant appeals and the two decrees have been consolidated for appeal purposes. For reversal, it is simply asserted that the chancery court erred in denying reductions in alimony payments, and that its finding that the chancery court lacks power to alter alimony amounts agreed upon by parties in a decree of divorce, is erroneous.

We do not agree that the Court committed error, and it might be said that if appellant’s position were upheld, there would hardly be any use in parties entering into an independent settlement contract in contemplation of divorce. Both parties agree that if the contract merged with the decree, the court has authority to alter alimony payments, and they likewise agree that if the contract constitutes a separate and independent agreement, the court does not have the authority to change it. Appellant argues that the language in paragraph “1” of the court’s order sustains his position. The language referred to is as follows:

“That the agreement made and entered into on the 13th day of November, 1967 which instrument is fully set forth above, constitutes a fair, equitable and binding agreement upon the parties, and that the same should be, and it hereby is, approved and confirmed and is made a part of the decree of this Court and is hereby given the same force and effect as if its set forth herein. The terms and provisions of said contract may be enforced by the further orders of the court in the same manner and to like effect as are the judgments and decrees of the Court.”

We do not agree that the fact the agreement is “made a part of the decree of this Court” adds any weight to appellant’s position, nor does the fact that the agreement recites that the terms and provisions of the contract may be enforced by orders of the court in the same manner and to like effect as are the judgments and decrees of the court, strengthen the argument.

In Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d, 439, the parties had entered into a written agreement by which they settled all property rights and agreed that the wife would receive $200.00 per month as alimony, and support for the couple’s four children. The Chancellor approved the contract and it was incorporated into the divorce decree. Subsequently, the court entered an order changing the amount Mrs. Bachus would receive as set out by the contract, from $200.00 per month to $150.00 per month. She appealed. In reversing the trial court, we said:

“The court erred in reducing the amount of the monthly payments. The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date. * * * If changed circumstances should subsequently render the payments inequitable the court may decline to enforce by contempt proceedings the payment of a greater sum than the circumstances warrant, thereby remitting the plaintiff to her remedy at law to collect the balance due under the contract.”

Here too, the court might well have punished appellant for contempt if it had found that he was in willful violation of its decree, but as stated in Backus, the court does not- have to enforce the provisions of a decree through contempt proceedings. Of course, one of the purposes, of incorporating an agreement that is independently entered into, is to be able to enforce its provisions through contempt proceedings.

In Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d, 954, this Court said:

Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Backus case, it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.

“The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon ‘the amount the court by its decree should fix as alimony.’ * * * A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with the proof upon an issue not in dispute, and by its nature it merges in the divorce decree.”

The fact that Dr. Armstrong entered into an improvident agreement is not grounds for relief, and we think the provisions of the agreement make clear that it was a separate and independent contract entered into between the parties, and independently enforceable in a court of law. There are nine different matters agreed upon by Doctor and Mrs. Armstrong. In item number “5”, Dr. Armstrong agrees to pay Mrs. Armstrong, commencing on the date of the divorce “the sum of $160.00 per week as alimony for life (our emphasis) or until she remarries”. Still further in the same paragraph, “In addition the defendant agrees to pay the annual real estate taxes on the plaintiff’s present home for so long as alimony is due and payable and for so long as she owns the home”.

Paragraph “5”, we think, clearly shows an independent agreement for it will be noted, that unless she remarries, appellee is due to receive alimony for life. This is not normally a provision that would become merged in a decree. Let us suppose that a clerk who earns $300.00 per month is required to pay his ex-wife $125.00 per month as alimony. Suppose that the ex-wife inherits a quarter of a million dollars from an uncle, but the ex-husband continues at his same position and at the same salary. Very likely, under an alimony order entered by the chancellor, the amount would be drastically reduced, — or completely disallowed. In fact, the provision of alimony for life would be most unusual in a divorce decree, such a decree frequently reciting that an award is made “until further orders of the court”. Even where there is no such provision, that meaning is generally accepted.

Paragraph “6”, providing for support of the daughter “for so long as she is enrolled in school and not gainfully employed” also indicates an independent agreement, for in a great many instances a chancellor will hold that the father’s duty to support normal children ends when they have attained their majority. Under the agreement reached between these parties, the daughter could acquire her A.B. degree, her Master’s degree, and her Doctor’s degree, perhaps attending school until thirty years of age, and the father would be legally obligated to pay the cost.

Paragraph “8” recites that Dr. Armstrong is indebted to Mrs. Armstrong for a personal cash loan in the amount of $2,700.00 which he agrees to repay at the rate of $100.00 per month. Certainly, it could not have been contemplated that the court would have the right to relieve appellant of this obligation. These provisions are referred to as a matter of showing that the parties, when entering into their agreement, desired an independent contract that could be enforced in a court of law as well as in chancery.

Without reciting further from the instrument we think the next-to-last paragraph fully resolves the question before us. That paragraph reads as follows:

“This agreement is made with full knowledge on the part of both parties hereto, that the promises, averments, and covenants herein under are mutually irrevocable * * *."

Affirmed.

John A. Fogleman, Justice,

dissenting. The majority apparently relies upon the following factors to declare the agreement in this case to be an independent contract and not merged into the decree of divorce:

1. Provision for alimony is for life, or until appellee remarries.
2. Appellant agreed to pay taxes on appellee’s home as long as alimony was due and as long as she owned the home.
3. Support for a daughter could extend beyond her minority.
4. Appellant obligated himself to repay a debt arising from a loan made to him by appellee.
5. The promises, averments and covenants are mutually irrevocable.

Facts not mentioned in the majority opinion that seem significant, and which, taken together with the language of the decree and other facts mentioned in that opinion, seem to me to make the conclusion that the agreement was merged in the decree inescapable, include:

1. Appellee filed suit October 28, 1965, and the case was at issue on November 16, 1965.
2. During the pendency of the action appellee made three separate applications to the court for exercise of its contempt powers to enforce its order relating to alimony pendente lite, child support, attorney’s fees and suit money.

While pertinent dates appear in the majority opinion, it is also significant that, even though the suit was at issue for two years before the decree of divorce was rendered, the uncontested decree was rendered one day after the date of the agreement in question.

The decision in Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439, is not helpful here. The written contract for settlement of property rights, alimony and child support there was not further identified or categorized. The court obviously treated it as an independent contract not merged into the decree so that it was not subject to modification as to alimony.

I cannot conceive of a situation in which the parties might go to greater lengths to merge an agreement into a decree than they went here. The agreement is recited in the decree. The caption of the agreement is identical to that which would be given to a pleading filed or decree or order entered in the case, viz:

IN THE CHANCERY COURT OF PULASKI COUNTY, ARKANSAS MARY NELLE ARMSTRONG PLAINTIFF vs no. 131247 HOWARD M. ARMSTRONG DEFENDANT

The parties to the agreement are denominated as plaintiff and defendant, respectively. The agreement covers every issue that might have otherwise been litigated if the wife established grounds for divorce, i. <?., attorney’s fees, costs of suit, property division, alimony, child support, adjustment of tax liabilities and restoration of property. Of course, the issue as to grounds for divorce could not have been eliminated by stipulation. Paragraph five relating to alimony was not binding upon the persorial representatives of appellant. Provision was made for payments to continue until appellee’s remarriage.

The enforcement of the contract was not left to the discretion of the court, as in cases where contracts are independent and the court may withhold its extraordinary powers leaving the parties to their other remedies. Any contrary idea is clearly negated by the sentence reading “The terms and provisions of said contract may be enforced by the further orders of this court in the same manner and to like effect as are the judgments and decrees of the court.” (Emphasis mine.) An intention to merge the agreement into the court’s decree with a reliance upon its enforcement powers rather than upon a retained independent cause of action could hardly be more clearly expressed.

When all the pertinent factors are considered, this intention could hardly be more clearly demonstrated. This merger is even more effectively expressed in the closing words of the decree, wherein the court said:

The court shall retain jurisdiction of the parties of this cause for the purpose of ascertaining and enforcing the rights of the parties according to the terms of this decree.

Even though the agreement here is written, the situation in this case is much more nearly like Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954, than Bachus. In Seaton, the contention was made that the alimony allowed by a divorce decree could not be modified because the award was based upon a property settlement made by the parties. Even though the language of the decree there was the simple statement “This agreement has been approved by the court and is hereby made a consent decree,” it was held that the agreement was not made with the intention of conferring upon the wife a separate cause of action, but merely was an agreement upon the amount the court should fix as alimony and, thus, subject to modification. It is clear that the agreement here was of the type involved in Seaton when we consider the statement there that such contract may be intended merely as a means of dispensing with proof upon an issue not in dispute, so that by its nature it merges in the divorce decree. The agreement before us certainly dispensed with a lot of proof and its intention so to do is clearly demonstrated, not only by its form and content, but by the record in the case.

It should also be noted that in Wilson v. Wilson, 186 Ark. 415, 53 S. W. 2d 990, where the agreement as to alimony was held to be subject to modification, settlement of property rights constituted a part of the agreement. We said that, pursuant to this settlement of property rights, the court decreed that the wife be given the household goods and be paid the sum of $60 per month and that she release and relinquish all her right, title and interest in and to any property of the husband.

Not long ago we held that an order to make weekly payments of alimony was decreed by a chancery court’s divorce decree reading, in pertinent part:

It is, therefore, by the Court considered, ordered, adjudged and decreed that * * * the Property and Support Agreement entered into by the parties, which is filed herein, be, and the same is hereby, specifically approved by the Court and is adopted and incorporated herein as a part and parcel of this Decree in settlement of the respective rights, liabilities, and obligations of the parties hereto; * * *
It is so ordered.

See Thomas v. Thomas (June 2, 1969), 443 S. W. 2d 534. There the agreement was made to settle, compromise and determine the parties’ respective rights, duties and obligations with regard, to support, property and financial matters. We relied upon Solomon v. Solomon, 149 Fla. 174, 5 So. 2d 265 (1942). A part of the opinion in that case quoted in Thomas reads:’

“It seems to be the rule that where such an agreement is merely ratified and not made a part of the final decree, the husband is not responsible in contempt proceedings for default on his part, but if the agreement is embodied in the decree and contemplates when executed that it shall become a part of the court’s order, a failure of the husband is punishable by contempt.”

The fact that child support is involved in the agreement is not really significant. The power of the court to modify a decree for child support cannot be defeated by an agreement between the parents, even though the court adopts that agreement. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409; Collie v. Collie, 242 Ark. 297, 413 S. W. 2d 42, Johnston v. Johnston, 241 Ark. 551, 408 S. W. 2d 885. Furthermore, we have recognized that a divorced parent’s obligation to his child is not necessarily limited to the child’s minority. Matthews v. Matthews, 245 Ark. 1, 430 S. W. 2d 864; Jerry v. Jerry, 235 Ark. 589, 361 S. W. 2d 92. We do not know what circumstances prompted the particular provision as to support and education of this daughter.

The provision for alimony for life should not be a significant factor in determining the question involved here. Alimony is normally to be paid during the joint lives of the parties or until the remarriage of the wife, just as the agreement between the parties provides. Birnstill v. Birnstill, 218 Ark. 130, 234 S W. 2d 757; Wear v. Boydstone, 230 Ark. 580, 324 S. W. 2d 337. It was said by this court when the rules to be observed by chancellors in these matters were first fixed that alimony should not be allowed for the life of the wife, but only during the joint lives of the parties. Kurtz v. Kurtz. 38 Ark. 119. Soon thereafter it was said that alimony continues only during the joint lives of the parties or until the wife remarries. Brown v. Brown, 38 Ark. 324. After another brief interval it was said that a decree for alimony, where no definite time is fixed during which it is to continue, will cease with the death of either party, or upon relief by the court on the application of the husband after remarriage of the wife. Casteel v. Casteel, 38 Ark. 477. I find no deviation from these declarations in our later cases.

The clause making the agreement mutually irrevocable also seems insignificant to me. The very words indicate that the parties cannot retract the agreements made in that stipulation. This does not mean that they were binding on the court. Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439; Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700. I do not see how irrevocability of the stipulation by act of the parties could be said to make the payments the subject of enforcement by independent cause of action, or to limit the court’s power of modification.

I cannot see how my position would in anywise hamper parties desiring to enter into an independent settlement contract in contemplation of divorce so that the wife retains an independent cause of action thereon making it enforceable even if the equity court should withhold its extraordinary power. I am disturbed about the reverse of that proposition, in view of the decision here. My question is, how can a husband and wife enter into a valid and binding stipulation resolving all litigable issues in a divorce case, except the one they are theoretically forbidden to resolve, so that enforcement of the decree and its modification to meet changed conditions will be vested in the court in which the cause is pending, eliminating any possible independent cause of action?

Of course, I would reverse the decree.

      Our emphasis.

      While the general denial filed by appellant was not withdrawn, no evidence was offered in his behalf. The only witnesses were appellee and her corroborating witness.

      The authority relied upon was Holmes v. Holmes, 186 Ark. 251, 53 S. W. 2d 226. In McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938, it was aptly pointed out that the wording of the Holmes decree on the critical .point was “It will be seen * * * that the agreement of the parties was ‘merely one as to the amount the court by its decree should fix as alimony’ and was not intended as an independent agreement for the payment of alimony.”


source: Caselaw Access Project

author: George Rose Smith, Justice. Carleton Harris, Chief Justice.

license: Public Domain

text:
    Franklin BOSNICK v. STATE of Arkansas
    5486
    454 S. W. 2d 311
    Opinion delivered June 1, 1970
    [As amended June 15, 1970.]

      Harold Sharpe, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Franklin Bosnick, age 40, was charged with first degree murder jointly with his son, Franklin Bosnick, Jr., 17, Danny Wayne McKay, 18, and Dewey Ray Murray, 24. The homicide occurred in the perpetration of robbery, but the information made no mention of that fact, charging the defendants instead with a willful, deliberate, malicious, and premeditated killing. Ark. Stat. Ann. § 41-2205 (Repl. 1964). The appellant, tried separately, was found guilty and sentenced to death. The most serious question in the case is whether the trial court was right in refusing to instruct the jury on the lesser degrees of homicide.

We state only the essential facts pertinent to the appeal. On December 31, 1968, the elder Bosnick and the three youths decided to rob a combined filling station, grocery store, and residence owned and occupied by Mr. and Mrs. James Gatteys, near the community of Shannondale. All four men were armed, their weapons comprising a rifle, two shotguns, and a pistol. The older man drove the group to the scene and waited outside in the car while the three younger men, their faces masked with silk stockings, entered the store to accomplish the robbery. It was then about dark.

The Gatteyses and a young clerk were in the store. Franklin, Jr., took the leád in holding up the three occupants of the premises and taking what money there was available. While the robbery was in progress a neighbor, Jimmy Vance, approached the store, looked in, and surmised what was happening. Vance went back to his truck and used a two-way farm radio to summon the police.

The deceased, Jessie J. Morgan, a city policeman at Hughes, was the first officer to arrive. Morgan knocked at the door twice, saying both times: “Mrs. Gatteys, it’s the law.” Young Bosnick idirected Mrs. Gatteys to open the door while he stood behind her. Bosnick fired once over the woman’s shoulder and then ran outside and continued to fire until his weapon was empty. He then ran back indoors, and Murray in turn went outside with the rifle and put additional shots into Officer Morgan’s, chest. It was later found that one cartridge in the officer’s pistol had been fired.

While the youths were completing the robbery a voice from the outside — presumably the appellant’s— said: “Come on; let’s go.” The three youths, having taken money and two additional guns from the Gatteyses, then left the premises and joined the older Bosnick in the waiting car. As they were about to drive away, two state policemen arrived, disarmed the robbers, and took all four into custody without further gunfire or violence.

As we have indicated, the trial court refused the defendant’s request that the jury be instructed on the lower degrees of homicide. Had the information charged the defendants with murder in the perpetration of robbery, then the court’s action might have been correct (leaving aside for the moment the fact that the elder Bosnick merely waited outside), because proof of a homicide in the course of a robbery or other felony specified in the statute relieves the State of the burden of proving premeditation or the specific intent to take life. Hence, under such an indictment, the proof may justify the court in refusing to submit the lesser degrees of homicide. Davis v. State, 182 Ark. 123, 30 S. W. 2d 830 (1930); Washington v. State, 181 Ark. 1011, 28 S. W. 2d 1055 (1930); Clark v. State, 169 Ark. 717, 276 S. W. 849 (1925).

In the case at bar, however, Bosnick was not charged with murder in the perpetration of robbery. It would therefore have been error for the court to submit that charge only, with no reference to deliberation or premeditation. See our opinion on rehearing in Rayburn v. State, 69 Ark. 177, 63 S. W. 356 (1901); also House v. State, 192 Ark. 476, 92 S. W. 2d 868 (1936).

Nor, in this case, do we think that a different view of the matter is called for by Initiated Act 3 of 1936. That act permits the indictment or information simply to charge that “John Doe, on January 1, 1936, . . . did murder Richard Roe.” Ark. Stat. Ann. § 43-1007 (Repl. 1964). If the defendant is not satisfied with such an abbreviated charge he may request a bill of particulars. § 43-1006. In response to that request the State would presumably be required to amplify the indictment or information by charging premeditated murder, or murder in the perpetration of a specified felony, or both.

Here, however, Bosnick had no reason to request a bill of particulars, because the State elected from the outset to charge him with premeditated murder rather than with felony murder. The initiated act was intended to abolish technicalities in the wording of criminal charges, but it certainly was not intended to enable the State to charge one “class of murder” (the phrase used in the Rayburn case, supra), and then prove a different class of murder. Hence, as far as the initiated act is concerned, we treat this case just as if the State had elected, in response to a request for a bill of particulars, to charge premeditated murder rather than murder in the perpetration of robbery.

With respect to the need for instructions on the lower degrees of homicide, Bosnick’s comparatively passive participation in the crime raises added problems. First, we have pointed out that when a group plans an armed robbery, “each one of the party would be responsible for every thing done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.” Clark v. State, supra. But whether the homicide was a probable and natural consequence of the common plan would ordinarily be a question for the jury.

Secondly, the jury could have attributed to the elder Bosnick a full share of responsibility for what took place inside the Gatteys store, even though the original plan did not contemplate a homicide. Henry v. State, 151 Ark. 620, 237 S. W. 454 (1922). But the jury was not required to do so. By the decided weight of authority, and by what we regard as the better rule, the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.

In Texas, for example, at a time when the distinction between principals and accessories had been, as in Arkansas, modified to some extent, the court had this to say:

Under our statute there is no such division of principals, but all are principals who are present and encourage in the act; including both the one actually performing the act, and others who may be present aiding in its performance. . . . The contention of appellant that a principal of the second degree, or one who, under our statute, did not actually commit the offense himself, but who was present, and, knowing the unlawful intent, etc., aided the person who did commit it, can only be convicted of the same degree as the actual doer, is not a sound one. If he enters into the commission of the offense with the same intent and purpose, then his offense will be of the same degree as the actual doer, but he may have a different criminal intent from the one who perpetrates or does the act; and in such case he will be guilty according to the intent with which he may have performed his part of the act. [Citing authority.] We therefore hold that it is competent, under an indictment charging all as principals in murder, to convict one of such principals of one degree of felonious homicide, and another of some other degree of felonious homicide, according to the intent with which such principals may have performed the particular act attributed to and proved against them. [Red v. State, 39 Tex. Crim. R. 667, 47 S. W. 1003 (1898).]

A similar thought was expressed by the New Mexico court in State v. Lord 42 N. M. 638, 84 P. 2d 80 (1938):

The question seems to be, whether under this statute, every person connected with the murder, whether principal or aider and abettor, must necessarily have been guilty of the same degree of murder. The statute does not say so. For instance, their participation in crime might have lacked the essential element of premeditation and deliberation that must exist before a homicide is murder in the first degree; whereas the principal may have long prepared himself to commit the murder and had deliberated over the matter sufficiently to make the crime murder in the first degree.

Other authorities to the same effect include State v. Absence, 4 Porter (Ala.) 397 (1837); McCoy v. State, 40 Fla. 494, 24 So. 485 (1898); Perkins, Criminal Law, p. 586 (1957). The opposite view was taken, by a divided court, in State v. Shon, 47 Haw. 158, 385 P. 2d 830 (1963).

In this case the appellant waited outside the Gatteys store while the three younger men consummated the robbery that led to Officer Morgan’s death. The jury might or might not have considered this defendant to have been equally as culpable as one or more of the/ others. We think the issue should have been submitted to the jury by instructions defining the lesser degrees of homicide. For this reason the judgment must be reversed. (We need not and do not decide — the point not being before us — whether the lesser degrees of homicide should be submitted to the jury with respect to a passive conspirator such as the appellant when the information charges a homicide in the perpetration of another felony.)

The appellant’s remaining arguments do not require an extended discussion. The trial court was right in allowing the State’s witnesses to testify to the declarations made by the three youths during the course of the robbery, such declarations being admissible against all the conspirators. Lesieurs v. State, 170 Ark. 560, 280 S. W. 9 (1926). Nor do we find any abuse of discretion in the trial court’s decision to allow the introduction of photographs of Officer Morgan’s body. Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17 (1956). At the trial there was no objection to the court’s giving an instruction in the language of Ark. Stat. Ann. § 41-2246, having to do with the accused’s burden of proving the justification or excusability of the homicide; but upon a retrial that instruction should not be given, for the reasons stated in Bagley v. State, decided September 15, 1969, 444 S. W. 2d 567.

Reversed and remanded for a new trial.

Harris, C. J., and Jones, J., dissent.

Carleton Harris, Chief Justice.

I cannot agree that the conviction in this case should be reversed, for, in my view, Bosnick was not entitled to instructions relating to the lower degrees of homicide.

And in reaching this conclusion, it is not necessary to go beyond our own statutes and cases.

Let it first be stated that, of course, it was not necessary for Bosnick to actually fire the shot that killed Morgan; it was sufficient that hé was jointly engaged with others in the robbery, and he was properly indicted as a principal, being present, aiding, and abetting. Henry v. State, 151 Ark. 620, 237 S. W. 454.

The majority opinion is predicated on the fact that Bosnick was not charged with murder in the perpetration of robbery, but rather was charged with a willful, malicious, and premeditated killing. In my view, the manner of the killing, under our statute, is immaterial. In 1936, the people of Arkansas adopted Initiated Act No. 3, being an Act to “Amend, Modify, and Improve Judicial Procedure” and the “Criminal Law”. Included in this act were certain provisions which appear as Section 43-1006, and 43-1007, Ark. Stat., 1964 Replacement. 43-1006 reads as follows:

“The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.

Section 43-1007 provides:

“An indictment may be substantially in the following form:

The State of Arkansas, ) vs. ) In the Pulaski Circuit Court. John Doe. )

The grand jury of Pulaski County, in the name and by the authority of the State of Arkansas, accuse John Doe of the crime of murder in the first degree (or other crime, as the case may be), committed as follows: The said John Doe, on January 1, 1936, in Pulaski County, did murder Richard Roe, against the peace and dignity of the State of Arkansas.

In Thompson v. State (1943) 205 Ark. 1040, 172 S. W. 2d 234, this Court sustained the validity of the Information which charged Thompson with the crime of Murder in the First Degree, the Information alleging:

“The said defendant Henry Thompson on the 23 day of December, 1942, in Cleveland county, Arkansas, did unlawfully murder Mrs. Susie Vedto against the peace and dignity of the State of Arkansas* * *.”

It would not appear that Bosnick was in ignorance of the details of the crime with which he was charged, but in such case, he could have moved for a Bill of Particulars as provided in 43-1006.

It is interesting to note that the same view was taken by the Supreme Court of Erie County, New York. In the case of People v. Tutuska, 192 N. Y. S. 2d 350, (affirmed by the New York Court of Appeals) the court said:

“The purpose of proving participation in the commission of another felony which leads up to and results in the homicide is entirely different than the one suggested by the defendant. There can be no murder without evidence of malice and of a felonious intent and a depraved mind. The indictment was sufficient in form when it simply accused defendant of having killed the deceased ‘willfully, feloniously and with malice aforethought,’ (citing cases). On the trial it was necessary to prove such malice and willful and felonious conduct, and this necessity was satisfied in accordance with the provision of the statute by showing that the homicide occurred while the defendant was engaged in the commission of another felony.”

The case then cites an earlier opinion written by Chief Justice Cardozo, of the New York Court of Appeals, as follows:

“Homicide, we said, is not murder ‘without evidence of malice and of a felonious intent and a depraved mind’, [citing case] The malice or the state of mind may be proved by showing that the act was done with a deliberate and premeditated design to kill. The case will then fall under subdivision 1 (§ 1044). It may be proved by showing that the act was done by one then and there engaged in the commission of another felony, [citing cases] The case will then fall under subdivision 2. In the one case as in the other a single crime is charged, the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing.”

Section 41-2205 Axk. Stat., 1964 Replacement, defines First Degree Murder as follows:

“All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.”

In Clark v. State, 169 Ark. 717, 276 S. W. 849 this court said:

“In the discussion of homicide by poison or in the perpetration of felony, the annotator there said: ‘The courts have frequently decided that where the only evidence of a homicide tends to show that it was committed by poison or in the perpetration of, or an attempt to perpetrate, one of the felonies enumerated in the statute defining murder in the first degree, no instruction on any grade of homicide less than murder in the first degree is necessary, and that one convicted of murder in the first degree on such evidence is not entitled to a new trial because of a failure to charge the law on a lower grade of homicide, or because of an instruction that no conviction of a lower degree can be had. ’ ”

The majority opinion agrees that Clark v. State, Supra also holds that when a group plans an armed robbery,

“each one of the party would be responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.”

The majority then add this sentence:

“But whether the homicide was a probable and natural consequence of the common plan would ordinarily be a question for the jury.”

I find no Arkansas case which sustains the view that where a victim is killed in a robbery participated in by several different persons, those not involved in the killing are entitled to instructions on all degrees of homicide; in fact, Henry v. State, holds just to the contrary. And, in that case, the court added, “this was true, even though the conspiracy did not expressly contemplate the commission of the crime of murder.”

The use of language describing the manner of the murder is only descriptive. As recently as March 30 of this year, in Turner v. State, 248 Ark. 367, 452 S. W. 2d 317, we approved a statement in the Idaho case of State v. Hall, 383 P. 2d 602, “The robbery was alleged only as a condition or circumstance characterizing the murder as first degree.”

To summarize, our cases hold that one who participates in a robbery, though he does not actually fire the shot that kills the victim, is just as guilty of murder as the participant who did fire the shot. Further, it is not necessary that the manner of the killing be alleged in the Information or Indictment; still further, where the murder is committed while perpetrating a felony, the only proper instruction is that of first degree murder, and the defendant is not entitled to instructions on the lesser degrees of homicide.

The people of this state, in 1936, passed a progressive measure, doing away with inconsequential technicalities in charging persons with crimes, thus recognizing that justice is not determined by what may or may not be alleged in the Information. Yet, the measure adopted by the people (Initiated Act No. 3 of 1936) adequately protected the rights of the defendant, that measure providing that the indictment must be certain as to what the defendant was charged with, the name of the court in which he was charged, and the name of the parties against whom he had committed the offense. As a further safeguard, the act provides that the State, upon request of a defendant, shall file a Bill of Particulars, setting out the acts it relies upon for conviction.

I am sorry that the procedural progress gained from the passage of that act, has now been discarded.

I therefore respectfully dissent.

Jones, J. joins in this dissent.

      It might here be stated that the majority opinion vaguely leaves an impression that it may be necessary to instruct on the lower degrees of homicide, even though one is charged with murder while committing a felony, the majority stating, “Had the information charged the defendants with murder in the perpetration of robbery, then the court’s action might (my emphasis) have been correct (leaving aside for the moment the fact that the elder Bosnick merely waited outside), because proof of a homicide in the course of a robbery or other felony specified in the statute relieves the State of the burden of proving premeditation or the specific intent to take life.”

      Emphasis supplied.

        People v. Lytton, 257 N. Y. 310.

      Emphasis supplied.

      For instance, at one time, in charging one with first degree murder, it was not only necessary to charge that the crime was committed with malice and premeditation, but also the weapon used had to be identified, (pistol, knife, etc.,) and in case of a pistol, the indictment, if proper, alleged that the party murdered was shot “with a 38 pistol, loaded with powder and leaden bullets”.


author: Lyle Brown, Justice.

text:
    DESSERT SEED CO., INC. et al v. DREW FARMERS SUPPLY, INC.
    5-5213
    454 S. W. 2d 307
    Opinion delivered June 1, 1970

      Rose, Meek, House, Barron, Nash & Williamson, for appellants.

      Teague, Bramhall ir Davis and Wright, Lindsey & Jennings, for appellee.
   Lyle Brown, Justice.

This litigation was initiated by six commercial tomato growers in Drew County and against Drew Farmers Supply, Inc. The growers ordered “Pink Shipper” tomato seed. The seed shipped was so designated, but when the crop began to mature it was discovered that the farmers had received seed of a variety substantially unmarketable in their area. (The variety could not be detected by visual inspection). Drew Farmers Supply filed a third party complaint against its supplier, Service Seed Company, a distributor headquartered in Mississippi. Service Seed inter-pleaded the seed grower in California, Dessert Seed Co., Inc. When the taking of evidence was completed all parties moved for directed verdicts. Thereupon the court held:

(1) That the tomato growers were entitled to recover against Drew Farmers Supply. (The amount of recovery was submitted to the jury which returned awards totalling $15,772);
(2) That Drew Farmers Supply was entitled to judgment over against Service Seed, the claimed limitation of liability being invalid; and
(3) That Service Seed was entitled to judgment over against Dessert Seed, finding that Dessert’s disclaimer of liability as a defense was invalid both as to Service Seed’s cause of action based on warranty and its action based on negligence asserted against Dessert.

Drew Farmers Supply did not appeal from the judgments against it by the growers. Service Seed, the distributor, appeals from the judgment over awarded against it in favor of Drew Farmers Supply; and Dessert Seed, the grower, challenges the judgment against it in favor of Service Seed. The two appeals of necessity must be treated separately.

I. Service Seed — Drew Farmers Supply Transaction. Drew Farmers Supply is a cooperative member of Southern Farmers Association, with headquarters in North Little Rock. Drew Farmers purchased most of its seed through Southern Farmers. It was stipulated that the two organizations were to be treated as one for the purposes of the lawsuit. In January 1967, Southern Farmers telephoned a rush order to Service Seed Company for tomato seed of the Pink Shipper variety. The seed was shipped forthwith and a six-pound bag was forwarded by Southern Farmers Association to Drew Farmers Supply. The tag attached by Service Seed recited that the bag contained Pink Shipper variety tomato seed. The face of the tag contained this fine print:

Subject to the limitation of liability herein set forth, we warrant that seeds or bulbs sold are as described on the container, within recognized tolerances. Our liability on this warranty is limited in amount to the purchase price of the seeds or bulbs. In no way shall we be liable for the crop.

For some eight years Drew Farmers Supply and/or Southern Farmers had been fairly regular seed customers of Service Seed. In the course of those transactions the buyer received Service Seed’s price lists and invoices. Those instruments contained substantially the same wording as that which we have reproduced from the tag, as did its letterheads. Service Seed therefore argues that the totality of the recited evidence indicated an awareness by Drew Farmers Supply of the existence and meaning of Service Seed’s disclaimer. Therefore, argues Service Seed, those facts place the case within the provisions of the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-316 (4) (Repl. 1961), permitting limitations on remedies for breach of warranty. The cited section has to be applied in accordance with the provisions of §§ 85-2-718 and 85-2-719.

Service Seed’s argument overlooks some essential facts. Drew Farmers Supply placed its order for these Pink Shippers by telephone. There was nothing said about a limited warranty. There was testimony that at least one of Drew Farmers’ agents had before seen the limitation of warranty wording on tags on previous orders; but that fact is of little importance here. We are concerned with the particular order and acceptance of the particular seed. It was undisputed that these two companies negotiated oral “spot orders,” as distinguished from written contractual orders containing limitation of liability clauses. There was testimony that not all tags carried printed limitations. Mr. Osborne, division manager for Southern Farmers, testified that Southern did business with suppliers from throughout the United States and that dependence was placed, “not on fine print,” but upon the integrity of the supplier; and that the paramount concern of the buyer is such items as variety, purity, and germination. The fact finding tribunal — the trial court — evidently found that the limitation of warranty was not a basis of the bargain and there was substantial evidence to support that finding.

Additionally, the statute requires that a writing purporting to exclude or modify an implied warranty of merchantability “must mention merchantability” and “must be conspicuous.” Ark. Stat. Ann. § 85-2-316(2) (Add. 1961). Service Seed’s tag did not comply with either requirement. Moreover, in capital letters on the tag, Service Seed certified the seed to be Pink Shippers. That representation was a warranty as a matter of law. Walcott & Steele, Inc. v. Carpenter, 246 Ark. 95, 436 S. W. 2d 820 (Feb. 10, 1969). Thus it is apparent that Drew Farmers had the protection of both the law of express and implied warranties, and it is certainly not unreasonable to conclude that Service Seed failed to show that those rights were unmistakably negated.

II. Dessert Seed Co. — Service Seed Co. Transaction. Dessert Seed is a seed grower in the west coast area. Early in 1966, Service Seed placed a substantial order for various seeds needed by it for the crop year 1967. Before the final consummation of that order there were a number of documents which passed from Dessert Seed to Service Seed, such as a letter, a price list, and a confirmation of the order in detail. All of those documents contained a finely printed limitation of liability clause. Likewise, items of correspondence which Service Seed sent to Dessert Seed contained the same type of printing whereby Service Seed purported to limit its liability. Finally, there was a contract order and agreement detailing the quantity, kind and variety of various seeds; describing the alternative terms of payment; protecting the seller in case of partial or total crop failure; relieving Dessert for liability from negligence; and limiting Dessert’s liability in any event to a refund of the cost of the seed. The contract was prepared by Dessert and signed by officials of both companies.

With respect to the seed Pink Shipper, a mistake was made in Dessert’s shipping department and the wrong seed was packed. Dessert explained it in a letter to Service Seed:

You had your order placed with us for Tomato Pink Shipper and the stock girl who lists the numbers (stock numbers) for the items to be shipped saw the Pink Tomato Deal and due to the similarity of the name she used that stock number. When this went out to the shipping department again they just picked up the lot number and made the same error in regard to the name.

Unfortunately for all parties concerned the seed was sent out under a shipping tag showing the tomato seed to be Pink Shippers. Also on that tag was a warranty clause in such fine print as to be barely legible:

We warrant to the extent of the purchase price that seeds we sell are as described by us on our container within recognized tolerances. Our liability, whether contractual or otherwise, is limited in amount to the purchase price of the seeds under all circumstances and regardless of the nature, cause or extent of the loss. Seeds not accepted under these terms and conditions must be returned at once in original unopened containers and the purchase price will be refunded.

Dessert Seed argues that there are a number of reasons why Service Seed was bound to be aware of the limitadon of liability invoked by Dessert Seed. It was printed on various items of correspondence; it was in the contract order and agreement; it was called to Service Seed’s attention in 1966 when a question arose about a previous shipment of cantaloupe seed; Service Seed used a similar limited warranty clause (without mentioning negligence); and it had become a common usage of trade within the industry.

Dessert Seed contends on appeal that it validly limited its liability to Service Seed to the amount of the purchase price of the seed. Dessert concedes that it warranted the seed to be Pink Shipper but argues that, according to the contract, the exclusive remedy would be for a recovery of the purchase price. Service Seed was relegated to the same remedy, Dessert argues, even if the wrong seeds were negligently shipped. We first examine the defense of immunity from negligence. There are three essential factors which, when combined, compel us to the conclusion that public policy forbids that we sanction immunity from negligence in this type of transaction. They are (1) the legal requirements of certification, (2) the wording on the certification tag, and (3) the damaging results which the negligence is likely to cause to a community of growers.

(1) The Legal Requirement of Certification and its Effect on Immunity from Negligence. In certifying on the shipping tag the contents of the container, Dessert was performing a duty imposed by statute. T. 7, U. S. C. A. § 1571. In addition to the federal law, under which the shipment was made, many agricultural States, California and Mississippi included, have enacted the same requirement. Other States, such as ours, have delegated to appropriate State boards the authority to regulate labeling requirements. We are convinced that such labeling requirements are generally followed in the seed industry. We are not unmindful of the general rule that in many instances liability for negligence may be avoided by contract. 17 Am. Jur. 2d Contracts, § 188, at p. 556. On the other hand, the same authority enumerates many exceptions to the rule. For example it is there stated: “[T]he law will not sustain a covenant of immunity which . . . relieves one of a duty imposed by law for the public benefit.” The same exception is found in 17 C. J. S. Contracts, § 262, p. 1164. Research reveals no Arkansas case in point; however, this court upheld the avoidance of a negligence immunity clause in Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S. W. 2d 403 (1942). It was there held that appellant could not by contract relieve itself of negligence in not keeping the proper temperature for eggs stored by appellee. It was there pointed out that such clauses of immunity are not productive of “caution and forethought by those in whose control rest the agencies that may cause damage.”

(2) The Wording on the Certification Tag. Dessert warranted that the seed conformed to the description on the container “within recognized tolerances.” Then in large type appears this wording: “Kind and Variety, TOMATO — PINK SHIPPER.” In our forum we recognize that utmost reliance can be placed on the certification; in Walcott & Steele, supra, we held that the certification, as a matter of law, warranted the contents of the bag. It would certainly dilute the strong reliance to which the warranty has been properly elevated if the packer could be shielded from negligence in packing the wrong seed, particularly when the word “negligence” does not appear on the tag.

(3) The Damaging Results which are Likely to Flow from Misbranding. Neither Service Seed, Drew Farmers Supply, nor the six growers who purchased seed from this shipment could detect the variation in variety by visually examining the seed. The revelation could reasonably come about only when the plants had matured to the extent that the variation was visible from the formation of the plant. Then it is too late in the season to correct the harm. When an entire community of growers is thus placed at the mercy of the seed grower-packer the law should encourage “caution and forethought” on the part of the latter. To uphold the negligence clause in the contract would be more likely to produce the opposite result.

Service Seed in its pleadings placed in issue the negligence of Dessert Seed. In support of that contention Service introduced a letter written by Mr. Dessert (a portion of which we have copied) and which explained the mistake. In addition to admitting the error of the stock clerk, Mr. Dessert left the definite impression that the particular employee was not experienced. He said “experienced clerks are hard to come by these days when everyone wants to make a lot of money and do very little work.” There was substantial evidence to support a finding of negligence.

To hold that Service Seed is limited to a recovery of the purchase price of the seed in the face of established negligence would be unreasonable, unconscionable, and against sound public policy. We declare the principle to be the law of our forum and it is applicable notwithstanding the contract was made in another State. White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208 (1910).

Affirmed.


text:
    Earl BEDWELL v. CIRCUIT COURT OF LAWRENCE COUNTY
    5458
    454 S. W. 2d 304
    Opinion delivered June 1, 1970

      Autrey ¿r Weisenberger, for petitioner.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for respondent.
   Lyle Brown, Justice.

Earl Bedwell is serving a federal sentence, presently incarcerated in the federal correctional institution in Texarkana, Texas. State charges are pending against him in Lawrence County, Arkansas. He has filed in this court a petition for mandamus, asking us to direct the Lawrence County Circuit Court to dismiss the Arkansas charges for refusal to afford him a speedy trial.

The facts present a problem of first impression to us. Bedwell filed on January 20, 1969, a petition in the circuit court asking for a speedy trial. At that time petitioner was serving his federal sentence in Leavenworth, Kansas. Lawrence County Prosecutor, David Hodges, was successful in persuading federal authorities to transfer petitioner to the Texarkana institution where he would be more readily available. Mr. Hodges then arranged with the circuit judge and the sheriff for the latter official to pick up the petitioner at Texarkana and take him to Walnut Ridge; there he would be tried and then returned to the federal authorities at Texarkana. The planned procedure came to a halt when it was discovered that the plan of having the petitioner brought to Walnut Ridge by the sheriff did not conform to regulations promulgated by the United States Department of Justice. The regulations provide that a prisoner so transported shall be accompanied by a deputy federal marshal or marshals; that the prisoner shall at all times be in custody of the marshal, including the time of trial; and that all expenses, including the expenses of deputy marshals, shall be paid by the county. In this particular case the federal authorities requested an advance deposit of $325 to secure the payment of expenses. The prosecuting attorney certified that it was the decision of the circuit judge, the county judge, and the prosecuting attorney that Lawrence County could not afford to post the cash required by federal direction. Thereupon Lawrence County abandoned its efforts.

Our statute gives one in prison the right to be brought to trial before the end of the second term of court after the charge is filed. Ark. Stat. Ann. § 43-1708 (Repl. 1964). As to one incarcerated in another jurisdiction, the statute does not begin to run until he requests trial. Lee v. State, 185 Ark. 253, 47 S. W. 2d 11 (1932), which was reaffirmed in Pellegrini, infra. Since petitioner filed his application for a trial in January 1969 more than two terms of court have intervened.

Respondent resists the petition on the ground that Lawrence County has been reasonably diligent and has acted in good faith in its efforts to afford petitioner a trial, in conformity with Smith v. Hooey, 393 U. S. 374 (1969), and Pellegrini v. Wolfe, 225 Ark. 459, 283 S. W. 2d 162 (1955).

We have briefly recounted the efforts exerted by Lawrence County through its prosecuting attorney, up to the time he discovered that the sheriff would not be permitted to pick up petitioner and keep him in custody until completion of the trial, then return petitioner to Texarkana. Up to that point it cannot be questioned that diligence had been exercised and in good faith. The question is, was it arbitrary for the county to decline to expend the county’s money to meet the federal bureau of prisons’ requirement that the bureau carry out transportation needs and trial custody? The regulations require that the county shall pay “not only the expenses of the prisoner but also the necessary expenses of deputy marshals or other officers responsible for his transportation” and that “the sum paid shall be sufficient to pay for subsistence and shelter of the prisoner and the deputy marshals or officers during the entire time of their absence from headquarters.” The prosecutor was advised that if the deposit of $325 did not prove sufficient to cover the costs the county would be billed for the balance.

We do not think the action of the county was arbitrary. It is common knowledge that the county governments in this State, for the most part, operate on limited and budgeted funds. The prosecuting attorney, after consultation with the circuit and county judges, certified to' this court that Lawrence County could not afford the financial commitment required. The county was ready and willing to furnish the sheriff and the county facilities to afford transportation and lodging for petitioner. Incidentally, that is the procedure used to return from outside the State any accused other than a federal prisoner. The method desired to be used would not only be cheaper but would retain for the county the control of the expenditures. On the other hand, the commitment requested by the bureau of prisons would give to a third party a blank check to expend indefinite sums of county tax money. It is not uncommon, from necessity, for several days to elapse between the arraignment and trial of an accused. Under the financial assurance requested by the bureau the delay could result in considerable overhead expenses for the subsistence and shelter of one or more deputy marshals and the petitioner. The authority to secure temporary custody of federal inmates for state trial is found in 18 U. S. C. A. § 4085. The method of transfer of custody for state trial appears to be a discretionary matter with the United States Attorney General.

The petition for dismissal of the charges is denied.


author: John A. Fogleman, Justice.

text:
    Eugene RHODES and PENNY-PLATE, inc. v. Louis BERNARD
    5-5263
    454 S. W. 2d 318
    Opinion delivered June 1, 1970

      Clark, Clark ir Clark and Wright, Lindsey & Jennings, for appellants.

      Henry, Boyett ir Morgan, Guy Jones, Sr., Phil Stratton and Guy Jones, Jr., for appellee.
   John A. Fogleman, Justice.

Appellee recovered j.ugment in a wrongful death action against appellants in the sum of $10,000 for the benefit of the estate of Rosemary J. Bernard, his late wife, and $125,000 for the benefit of her next of kin. Appellants argued that the trial court erroneously refused to direct a verdict for the defendants, that the verdict was such a shocking injustice that they were entitled to a. new trial and that the verdict was excessive.

The action arose from a motor vehicle collision which occurred on June 4, 1968, at a point about four miles east of Vilonia on U. S. Highway No. 64, where it ran east and west. Rosemary Bernard and Eugene Rhodes were the drivers and only occupants of the two vehicles involved. Mrs. Bernard was driving a 1965 model Dodge one-half ton (pickup) truck. Rhodes was operating a 1968 Ford tractor and trailer traveling from Searcy to Russellville in the scope and course of his employment by appellant Penny-Plate, Inc.

The collision took place at a point almost directly in line with a roadway proceeding north from the highway and another proceeding south. From this point the highway was straightaway to the east for approximately one-half mile. Although the approach to the collision site from the east was on a slight downgrade, a driver approaching from that direction had a clear view of the scene for at least 1,400 feet. At the time of the collision Louis Bernard was driving a John Deere farm tractor pulling a planter which extended five feet to the rear of the rear tractor wheels. The planter and tool bar to which it was attached extended beyond the wheels on the tractor on each side. The main highway slab was asphalt pavement 22'3" wide. On each side of the highway slab there was an improved asphalt shoulder which appears to be at least as wide as a normal automobile and without any obstruction preventing its use by vehicles proceeding on or along the highway.

Appellants’ argument that they were entitled to a directed verdict is based entirely upon their contention that the version of the occurrence related by appellee is contrary to the undisputed evidence and the physical facts. Even though we might think that the evidence preponderates against Louis Bernard’s version of the incident, or even if we thought it highly improbable that the collision occurred in that manner, we cannot say that this evidence is not substantial unless it be demonstrated beyond controversy that, applying well-known laws of nature, mathematics, mechanics and physics, it was not physically possible that the collision and the incidents leading up to it occurred in the manner described by him. Hot Springs Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369. When we consider the evidence in the light most favorable to the appellee, drawing all reasonable inferences therefrom in his favor, we cannot say it has been demonstrated that it was impossible that the collision occurred in the manner appellee related.

Louis Bernard’s version of the incident is as follows: she went by the post office. She overtook him at a point approximately one-fourth mile east of the point of the collision and followed him to the scene. The tractor Bernard was driving was equipped with a flashing light on its left rear at such a height that it would not be obscured by the following pickup truck. This light was in operation at all times on that day. From the time that she overtook him, neither his tractor nor the pickup truck was ever pulled entirely off the main-traveled portion of the highway. The left wheels of both were on the highway at all times, and the right wheels were off the highway on the shoulder. Bernard stopped the tractor at a point slightly east of the road to the south which he was about to enter, and his wife stopped the pickup truck immediately to the rear of the tractor and its equipment. Bernard waited until a vehicle approaching from the west passed him, looked to the east and, seeing no approaching vehicle and feeling that both vehicles could clear the highway, started across the highway at an angle in the direction of the roadway to the south. He shifted the tractor into second gear in which it could move at a speed of one to three miles per hour. He did this in order to “weave” the tractor on the road he was about to enter to avoid the planter’s hitting shrubbery, trees and other growth. The first indication of danger that came to his attention was the sound of a horn and the squealing of brakes just as the back wheels of his tractor were leaving the main-traveled lanes of the highway. Bernard looked around and saw the truck strike the vehicle driven by Mrs. Bernard. He got just a glance at the tractor-trailer before the impact. At the time, the front of the Dodge pickup truck was not more than three feet to the rear of the planter on the tractor. His tractor wheels were at the edge of the pavement. He described the collision as having happened like a flash of lightning. • Both vehicles skidded from the point of impact until they met an obstruction in the form of an embankment south of the highway. The sound of the brakes continued until the vehicles came to rest. When they did, the Ford tractor was jammed into the left door of the pickup truck so that the door could not be opened. The impact was not broadside, but the pickup truck was hit on its left-hand side at an angle. The door was mangled in a way which would have been impossible if the pickup truck had been struck broadside.

He and his late wife left their home on the morning in question with the objective of planting soybeans in a field south of the place the collision occurred. When they left home they separated and

The thrust of appellants’ argument is that it was impossible for Mrs. Bernard to have made a left turn from the position described by her husband so that she could have been struck “broadside” as investigating state policeman Gwatney surmised and Rhodes and one Roy Wells testified. We cannot accept the premises upon which this argument is based as conclusive. In the first place, it is abundantly clear that the Bernard pickup was not struck broadside. Rather, the photographs and physical evidence confirm the fact that at the time it was struck the Dodge pickup truck was proceeding at more than a right angle to the path of appellants’ vehicle. We are not favored with any evidence as to the length of the pickup truck or its turning radius. The skid marks made by the front wheels of this vehicle commenced at a point two feet south of the center line of the highway. The front end extended 2 to 2Z> feet beyond its front wheels. Thus, at least four feet of the front of the Dodge pickup was south of the center line at the moment of impact. Examination of pictures of the Ford tractor clearly indicates contact with the top of the cab of the pickup truck at a point at least six feet from the left front corner of the Ford. Virtually all of the damage to the Ford tractor was at or near its right front corner. As indicated by the skid marks, the left front corner of the Ford tractor was very near the center line at the time of impact. Thus, it appears that the major impact to the pickup truck may have been at a point about 10 feet back of its front. Rhodes himself testified that the major damage to the pickup truck was at its left-hand door and left bed. A photograph shows considerable damage to this door, the left rear of the cab and left front end of the bed. It seems clear from the evidence relating to the skid marks that all of the wheels of the pickup truck were on the main-traveled portion of the highway at the time it was struck. A picture shows its right rear wheel angling inwardly at the bottom. Even though the state policeman testified that he “imagined” that a portion of the back of the pickup truck was on the north shoulder of the road at this time there .was no physical evidence to support this statement.

If indeed Bernard turned the tractor to his left from a dead stop, it could not have been traveling more than three miles an hour in second gear when he cleared the highway. He was followed by the pickup truck driven by his wife, who obviously must have started the truck from a dead stop after he commenced his turn. It could reasonably be inferred that the speed of her vehicle never exceeded three miles per hour. Rhodes estimated the distance from which he could see the point where the collision occurred as 900 feet. Appellant admitted that he was driving his truck in excess of the legal speed limit. At one time he admitted a speed of 50 to 55 miles per hour and stated that he increased his speed above 50 miles per hour knowingly. When asked how much he was speeding, his answer was “I don’t know.” Gwatney said that the whole pickup truck, on both sides, was bowed where the Ford struck it. Wells testified that at the time of the impact the Bernard tractor was across the highway on the south shoulder and stopped about 10 feet off the highway.

We do not know the normal rate of acceleration of the Dodge from a standstill to a speed of three miles per hour, but the jury might well have found that Rhodes’ tractor-trailer, even at only 55 miles per hour, could have traveled more than 400 feet in the interval of time required for the pickup truck to reach its position in the highway from a position with the left wheels on the pavement but near its edge. This would be in addition to the distance Rhodes’ vehicle could have traveled at that rate after the tractor turned but before the pickup truck did. The jury might have inferred that Rhodes was driving his tractor-trailer unit at a much higher speed than he admitted. Not only did it appear from the skid marks on the pavement that he knocked the Dodge pickup truck 137 feet in a southwesterly direction after sliding at least 142 feet on a dry pavement with his brakes on 18 wheels locked, but it could have been inferred that the vehicles stopped then only because of striking the embankment south of the south highway ditch. His vehicle weighed about 25,000 pounds and his load 18,000 pounds.

G. W. Coker, who stopped to assist Bernard in removing Mrs. Bernard from the pickup truck, Gwatney and Wells, all saw marks showing that the pickup truck struck this embankment against which it came to rest. Coker said the right front end was “kind of buried” in the bank. Wells supposed the bank stopped the vehicles. He said that these marks were still there at the time of trial.

It may well be that the jury also inferred that Rhodes was keeping no lookout and exercising somewhat less than that degree of control which would permit him to stop if danger became apparent. Not only is there a conflict in his testimony and that of Wells as to the relative positions of the Bernard tractor and pickup truck before either pulled onto the highway, but Rhodes never mentioned the John Deere tractor to the investigating officer. He testified at the trial that he hit his brakes and blew his horn when the tractor pulled onto the highway, but that, in disregard of the noise from the horn and “squeal” of the tires, Mrs. Bernard pulled the pickup truck onto the highway in front of his skidding truck. Yet when he explained the occurrence to Gwatney, he said “When I saw her start across the road, I hit my brakes.” Unquestionably, Rhodes was then referring to Mrs. Bernard in her pickup truck.

We are also unable to agree with the assertion of appellants that the pickup truck would have been damaged at the rear or left rear had it been turning left from the westbound lane. This argument assumes that the pickup truck would have been traveling in a normal position with all wheels in the northbound traffic lane at the time it commenced its turn. This is not reasonably to be inferred from Bernard’s testimony. The version of the incident most favorable to appellants would place the left wheels of the pickup at a distance of two feet off the highway as related by Rhodes. We see little difference in the possible angle of impact between a start with the left wheel two feet off the highway and one with those wheels on the highway near the north edge. Rhodes testified that the pickup truck made a sharp left turn when it started.

Appellants also argue that the only evidence worthy of credence is that of appellant Rhodes, Gwatney and Wells. Yet, we find factors from which a jury might have determined their testimony worthy of less than full credit. Except for measurements and observation of conditions after the collision, Gwatney got his version of what happened almost entirely from Rhodes, who certainly was not a disinterested person. Gwatney got little information from Wells other than the fact that the latter was in his yard somewhere close to the accident at the time it happened. The officer merely listed Wells as a witness. He testified that he “didn’t get all that many statements.” Gwatney’s idea that the tractor hit the pickup truck broadside obviously must have come from Rhodes.

The fact that the collision was not broadside lends nothing to the weight of Rhodes’ testimony. According to the version given by him on the witness stand, he first saw the John Deere tractor sitting on the shoulder but off the highway. He did not see the pickup truck until the tractor started across the highway, but said that he immediately started applying his brakes and blowing his horn on account of the movement of the tractor. He said that the pickup truck came onto the highway as he went past the tractor. Yet, he said that the pickup truck was close behind the tractor and that the implement on the rear of the tractor was still in the south lane of the highway when he collided with the pickup truck. Rhodes admitted that on his discovery deposition prior to the trial he had at first placed Bernard’s tractor in a position to his left of the pavement rather than on the right. He had also testified then that the tractor was stopped on the shoulder of the highway in a position to the rear of the pickup truck and that the truck only became visible to him when the tractor pulled out and headed across the highway.

Wells said that the collision occurred right in front of his house which was about 100 feet north of Highway No. 64. Appellants rely strongly on his testimony to show that both the Bernard tractor and the pickup truck were completely off the paved portion of Highway 64. Wells’ testimony on this point is something less than positive. He first said that it “looked like” Bernard pulled his tractor completely off the highway, and it “looked like” the pickup truck stopped right behind the tractor off the north lane about five minutes later. Later, he was “pretty sure” the vehicles were stopped off the highway, but admitted that he made no real effort to see where Bernard stopped and that he didn’t pay any special attention to the vehicles. Wells testified that he went back to work in his yard after the pickup truck arrived. He looked up after he heard first, the tractor go over the road, and then, a horn blowing. He said that Mrs. Bernard had then started the pickup truck up on the highway, but the truck driven by Rhodes was still not within his line of sight because of the obstruction to his view by a house to the east and closer to the, highway than his. According to Wells when the horn started blowing, the pickup truck was on the north side of the road facing west. Wells’ front lawn slopes away from the highway toward his house, so that the level of the highway was higher than his eye level. At the time he claims to have seen Mr. Bernard pull up and stop, Wells was about 75 feet from the highway.

There was no error in the court’s submitting the case to the jury on appellee’s allegations of appellants’ failure to keep a lookout, failure to exercise the requisite control and operation of the vehicle at an excessive speed.

Appellants rely upon the case of Jamison v. Spivey, 197 Ark. 698, 125 S. W. 2d 453, to support their second point for reversal. There the jury verdict for $6,500 was awarded in a case arising out of a relatively slight collision where the evidence of injuries was such as to cause this court to entertain grave doubts that it was sufficient to sustain a recovery of more than nominal damages. Certainly the collision here and the death of Mrs. Bernard could not cause such misgivings. Nor can we say, as did the court in Singer Mfg. Co. v. Rogers, 70 Ark. 385, 67 S. W. 75, 68 S. W. 153, (from which appellants’ quotation in Jamison v. Spivey was actually taken), that the verdict is so clearly and palpably against the weight of the evidence as to shock the sense of justice of a reasonable person. What we have heretofore said has equal application to this point for reversal.

Appellants’ arguments on their second point and those urged as to excessiveness of the verdict are somewhat overlapping, but we do not find the verdict so excessive in amount as to require a remittitur, as prayed by appellants.

Little need be said about the award to Mrs. Bernard’s estate. Funeral expenses amounted to $600. Her husband found her pinned between the back of the Dodge seat and the steering wheel. Her feet were tangled in the brake and clutch pedals. Her right arm was bleeding. A piece of metal was imbedded in it. She was conscious and continuously saying “Lord help me,” calling on her husband for help and whimpering and crying out during all the time efforts were being made by her husband, Coker and others to remove her. Her cries were only interrupted when she would lose her breath and slump over, after which she would raise up and resume them. Estimates of the time spent before she could be removed from the truck ranged from 35 to 60 minutes. Bernard said that when he first went to her, he could see evidence of pain in her eyes and that she held his hand so tightly that it hurt him. After she was removed from the pickup truck she was placed in an ambulance. She was still groaning and crying out and continued to do so, according to her husband, until she went limp, after the ambulance arrived in Conway, some 18 miles away, one hour after the collision. We cannot say that the amount awarded for pain and suffering was so excessive as to shock the conscience of the court, or lead to the conclusion that the verdict was the result of passion or prejudice or that the jury was not governed by the evidence.

Neither can we say that the recovery of $125,000 for the benefit of the next of kin was excessive. There was substantial evidence to show that this 38-year-old woman was an unusual wife and mother, and a dutiful housewife who performed all of the housekeeping and homemaking chores. She contributed her own earned income of $800 per year to the family living. Her contribution to the family livelihood was not limited to this income. She kept all of the books on her husband’s farming operations, managed the finances, paid the bills and assisted in planning. She drove the truck while he was picking up hay and driving the tractor in feeding their cattle. She regularly attended to repairs, and obtained and hauled supplies, feed and fertilizer so her husband would not have to leave the field. She took hot meals to him when he was working in the fields. Her stepfather testified that Mr. Bernard had quit farming because he was unable to conduct his operations without her assistance. She not only did the washing, ironing and cooking for the family, but also kept a large garden. She canned 500 quarts of food for the family annually. She transported her three children wherever they needed to go.

There was also evidence from which the jury might have found that each member of this family suffered mental anguish and more than normal grief over the loss of a loved one. The family consisted of the parents and three children. Edward, aged 20, her child by a previous marriage, was adopted by Louis Bernard. Mark, then 14, and Lou Ann, then 12, were the other two children. The family was described as being very close, and the home a very happy one. There was evidence tending to show that Mrs. Bernard was the central figure and force in that home. She seems to have been the counselor and confidante of all the others. She was shown to be the planner of family activities, which included birthday and holiday celebrations, picnics and fishing trips. It appears that she was a religious woman, who also led her family in this phase of their lives. The home was described as presently being a gloomy one, whose members were reluctant to stay at home.

Edward, a college student, was said to have failed in all his studies because of his inability to settle down or to concentrate after his mother’s death. One witness said that this broke Edward’s heart because he knew how much his mother wanted him to have a college education. One of Edward’s friends testified that this son had missed his mother very much and had taken to frequent drinking.

Mark was said to have been so affected that he changed from a happy, mischievous “kidding” boy to a serious, quiet, sad and very unhappy one, who had been unable to find any substitute for his mother. It was said that on occasion he hangs his head and cries. He was also described as having a sad look in his eyes.

Lou Ann was said to be the closest of all to her mother. The two were described as inseparable. This young daughter had been open in her frequent displays of affection for her mother. Witnesses said that she had become a very unhappy little girl and that her grief was indescribable. Her father has heard her crying at night.

Friends and relatives testified that since his wife’s death Louis Bernard seems a much quieter man, who is unable to express himself or to keep going. He was said to have lost interest in everything and to have taken to heavy drinking. His mood, formerly described as good, was called sour. He said that shortly after his wife’s death he commenced having stomach aches, passing blood and losing weight. His doctor prescribed ulcer medication. He had not regained the lost weight at the time of the trial.

When we consider that the verdict of $125,000 was to compensate all members of the family for earnings and other services Rosemary Bernard might reasonably have been expected to contribute to them in the years to come, the instruction, moral training and supervision reasonably to be anticipated had she lived, the husband’s loss of consortium and the services of a wife so instrumental in assisting him in his labors and managing family and business affairs and for mental anguish above and beyond the usual grief over loss of their loved one, we cannot say that it was so excessive as to warrant a remittitur, even though we might feel that it is liberal.

The judgment is affirmed.

      Roy Wells stated that when he first saw the Ford tractor he could hardly see its trailer because of the smoke from the tires grabbing.


author: John A. Fogleman, Justice. Conley Byrd, Justice,

text:
    C. C. DAVIS, Jr. et ux v. ARKANSAS LOUISIANA GAS CO.
    5-5273
    454 S. W. 2d 331
    Opinion delivered June 1, 1970

      Dale Bumpers and Buddy Hixson, for appellants.

      Williams ir Gardner, for appellee.
   John A. Fogleman, Justice.

This appeal from a judgment dismissing appellants’ complaint as amended is based upon the assertion that the circuit court erroneously sustained appellee’s demurrer thereto. The demurrer was general, stating merely that the complaint and the amendment thereto failed to state facts sufficient to constitute a cause of action. Obviously, it is not a speaking demurrer as argued by appellants, who also argue that their pleadings do state a cause of action.

The complaint as amended contained allegations that, during construction of a pipeline on a right-of-way across appellants’ pasturelands condemned for that purpose, appellee’s agents and employees carelessly and negligently cut fences and left gates open, allowing appellants’ registered cattle to stray from the pasture and mix with grade cattle of adjoining owners so that it became necessary for appellants to remove their cattle to a meadow owned by them. They alleged that loss of the grazing of the 100-acre pasture and 5,000 bales of hay from their meadow resulted. Appellants also alleged that their registered bull was rendered unfit for breeding purposes as a result of either his fall into a ditch on appellee’s right-of-way, carelessly and negligently left unprotected by appellee’s employees, or carelessness and negligence of appellee’s employees in subsequently removing him from the ditch, or both the fall and the removal.

In testing the sufficiency of a pleading by general demurrer, every reasonable intendment is indulged to support the pleading, and if the facts stated in the pleading, together with every reasonable inference deducible therefrom, constitute a cause of action, the demurrer should be overruled. Donham, Commissioner v. Neely Company, 235 Ark. 710, 361 S. W. 2d 650; Farmers Cooperative Assn., Inc. v. Phillips, 241 Ark. 28, 405 S. W. 2d 939. When we view appellants’ pleadings in this case we cannot agree with the circuit judge’s holding that no cause of action was stated. We do not agree with the appellee’s argument that it was under no duty to take any measures for the protection of appellants’ animals, so long as it did nothing to entice or lure them into the ditch. Nor do we agree that the action of appellants in removing their cattle to the meadow can be said to be such an intervening cause that any negligence in cutting the fences and leaving the gates open could be held as a matter of law to be a remote, rather than a proximate, cause of appellants’ loss of hay.

It has always been recognized in this state that a landowner from whose lands a right-of-way easement has been taken has the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement after the improvement is constructed. Ark.-La. Gas Co. v. Maxey, 245 Ark. 15, 430 S. W. 2d 866. We have said that a condemnor is granted exclusive possession of the condemned property only to the extent necessary for the erection, operation and maintenance of the improvement for which the easement is taken or granted, and that the landowner has the right of possession subordinate to the paramount possession of the condemnor, with the corresponding right to exercise any and all rights of ownership except such as are inconsistent with the easement. Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R. 1446. As a corollary to the recognized principle hereinabove stated, it is said that the rights of the parties are reciprocal and the respective owners must use the way in a manner that will not interfere with the other’s right to utilization and enjoyment •thereof. Lindsey v. Shaw, 210 Miss. 333, 49 So. 2d 580 (1950); Denton v. Buffalo Pipe Line Corporation, 39 N. Y. S. 2d 83 (Sup. Ct. 1939). Many years ago, we recognized that destruction of a landowner’s crops by a railroad during construction constitutes a tort independent of the taking of the right-of-way. Springfield and Memphis Railway Company v. Henry, 44 Ark. 360.

In an Arkansas diversity case, the Eighth Circuit Court of Appeals has sustained a recovery of damages from a contractor for cattle lost when they escaped from a pasture by reason of the cutting of, and failure to restore, pasture fences at places where they crossed a right-of-way acquired by an electric cooperative for the purpose of constructing, operating and maintaining an electric transmission line. The contractor was then clearing the right-of-way preparatory to construction of the line for the cooperative. Kincade v. Mikles, 144 F. 2d 784 (1944). Of course, even though the utility company was alleged to have been doing the work itself in the case before us, the liability for negligent acts or omissions in this regard would not be different.

Other jurisdictions, including those whose decisions were cited above, have applied these principles to allow recovery of damages to landowners or their property from the owner of an easement for utility purposes, based upon violation of the duty of the easement owner to the landowner. It is generally recognized in such cases that the duty is imposed upon the holder of the dominant estate to so use the property that injury or damage to the owner of the servient estate will not result from customary use, maintenance or repairs of the dominant estate. Cities Service Gas Co. v. Christian, 316 P. 2d 1113 (Okla. 1957). This requires use of the easement in such a way as to impose as slight a burden as possible on the servient tenant. Baker v. Pierce, 100 Cal. App. 2d 224, 223 P. 2d 286 (1950).

It has also been held that it would be reasonable to expect, under circumstances similar to those existing here that, whenever a fence is breached, the easement holder would replace the wires on the posts to preserve the enclosure. M & M Pipeline Company v. Menke, 45 S. W. 2d 344 (Tex. Civ. App. 1931). In the case just cited the situation was analogized to the requirement that the owner of a right of passage over another’s land close gates used for ingress and egress.

Damages to the lessee of pastureland resulting from a ditch being left open were held recoverable because of the duty imposed by law upon the holder of an easement for installation and maintenance of a pipeline, upon entering the pasture, to use ordinary care in his operations to maintain the premises in such condition as not to cause injury. J. M. Huber Petroleum Co. v. Yake, 121 S. W. 2d 670 (Tex. Civ. App. 1938).

Whether appellee acted negligently in cutting the fences and leaving gates open or in leaving an open ditch unprotected may well depend upon the reasonableness or necessity for its doing so in order to construct the line. See Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R. 1446; Transcontinental Pipe Line Corp. v. Hill, 55 So. 2d 170 (Miss. 1951); Shell Pipe Line Corp. v. Coston, 35 S. W. 2d 1056 (Tex. Civ. App. 1931); J. M. Huber Petroleum Co. v. Yake, supra; Denton v. Buffalo Pipe Line Corporation, 39 N. Y. S. 2d 83 (1939). In most cases, this will be a question of fact to be resolved by a jury upon pertinent evidence, as would be the reasonableness of measures taken to avoid injury or damage to an owner or his property, crops or livestock. See, e. g., Wall v. Rudolph, 198 Cal. App. 2d 684, 18 Cal. Rep. 123 (1961). Cases from other jurisdictions, in which recovery for loss or damage because of escape of cattle through breaches of pasture fences, or because of injuries to cattle through negligence in operations of the easement holder was sustained, include M & M Pipe Line Co. v. Menke, supra; Estey v. Susquehanna Pipeline Co., 199 Misc. 290, 98 N. Y. S. 2d 560 (1950); Cities Service Gas Co. v. Christian, supra. Unless we can say that the complaint is so defective that, taking all facts alleged as admitted, they state no cause of action whatever, we must conclude that the demurrer should have been overruled. United States Fidelity & Guaranty Co. v. Moore, 233 Ark. 703, 346 S. W. 2d 524; Donham v. Neely Co. 235 Ark. 710, 361 S. W. 2d 650. We cannot say that appellants’ pleading is that defective.

We are limited to the narrow question whether appellants’ allegations state any cause of action and do not have before us any question pertaining to burden of proof or measure of appellants’ damages which a jury may find to have been próximately caused by acts of appellee. In view of the authorities herein cited, we do not agree with arguments of appellee that appellants have stated conclusions only, particularly as to cutting fences, leaving gates open and leaving an open ditch unprotected. The allegations as to negligence in removal of the bull from the ditch may be subject to that objection. There is no statement of - any act or omission on the part of appellee in removing the bull which resulted in the disaster to him. It may well be that a further motion to require the complaint to be made more definite and certain in this and other particulars is appropriate. Furthermore, such questions as the existence of intervening causes, contributory negligence and failure of appellants in any duty they may have had to minimize their damages, are matters to be asserted in defense, and are not considered here.

The judgment is reversed and the cause remanded with instructions to overrule appellee’s demurrer.

Conley Byrd, Justice,

concurring. I concur in the reversal of the trial court’s order sustaining the demurrer, but disagree with so much of the opinion as suggests that the allegations as to removal of the bull from the ditch states only conclusions. As I read the complaint it alleges that they owned a bull, valuable for breeding purposes, that the defendant left an unprotected ditch into which the bull fell and that the defendants carelessly and negligently removed the bull from the ditch in such manner as to render the bull unfit for breeding purposes. A man should surely be able to remove a bull from a ditch without rendering the bull unfit for breeding purposes. Also common knowledge obtained from “the birds and the bees” should impart some knowledge to the defendant as to what renders a “bull unfit for breeding purposes.” Enough so I would think that such an allegation in a complaint would not be demurrable and without requiring the owner to adopt the vernacular of the cow pasture in a formal complaint.

      As indicated by the cases heretofore cited, appellee’s right-of-way is an easement only.

      While some of the cases cited involve easements obtained by grant rather than by condemnation, it appears that the terms of the grants were such that the reciprocal rights and duties of the parties were the same as they would be if the right-of-way had been obtained through eminent domain.