C. C. DAVIS, JR. ET UX v. ARKANSAS LOUISIANA GAS CO.
5-5273
Supreme Court of Arkansas
June 1, 1970
454 S. W. 2d 331
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.
Williams & 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
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
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
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;
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 proximately 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
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.