Arkansas Power & Light Co. v. Cates

• Decision Date: 27 January 1930
• Docket Number: 118
• Citation: 24 S.W.2d 846,180 Ark. 1003
• Parties: ARKANSAS POWER & LIGHT COMPANY v. CATES
• Court: Arkansas Supreme Court

24 S.W.2d 846

180 Ark. 1003

ARKANSAS POWER & LIGHT COMPANY v. CATES

No. 118

Supreme Court of Arkansas

January 27, 1930

Appeal from Saline Circuit Court; Thomas E. Toler, Judge; affirmed.

Judgment affirmed.

Raymond Roddy, W. H. Holmes, Harry E. Meek and Robinson House & Moses, for appellant.

Tom W. Campbell and W. R. Donham, for appellee.

MEHAFFY J. HART, C. J., SMITH and McHANEY, JJ., dissent.

OPINION

MEHAFFY, J., (on rehearing).

On the 30th day of April, 1915, the town council of Waldo, Arkansas passed an ordinance granting to the Arkansas Power & Light Company for fifty years "a free right-of-way for the erection and maintenance of poles and wires with the necessary appurtenances thereto for the purposes of operating and transacting a general electric light and power plant business over, through and upon all the streets, alleys, roads and highways within the boundaries of the present and future limits of the town of Waldo, Arkansas. The said poles shall be placed at points on a line where streets and sidewalks come together." Section one of the ordinance.

Section four of the ordinance reads as follows: That the latest method of construction and good material shall always be used, and the wires shall be insulated so as not to endanger life or property in the maintenance and operation of the aforesaid light and power plant."

Section five of the ordinance reads as follows: "This ordinance, upon its acceptance in writing by the Arkansas Light & Power Company, filed with the clerk or recorder of the incorporated town of Waldo, Arkansas, shall constitute a contract between the Arkansas Light & Power Company, its successors and assigns, on the one hand, and the incorporated town of Waldo, Arkansas, on the other."

Thereafter, the Arkansas Power & Light Company, as provided in section five of the ordinance, accepted in the following language: "To the Mayor and City Council of Waldo, Arkansas: The Arkansas Power & Light Company, by H. C. Couch, its president, being duly authorized, hereby accepts the franchise granted, passed and approved on the 30th day of April, 1915. Arkansas Power & Light Company, by H. C. Couch, President."

The Arkansas Power & Light Company sold its property in Waldo, but re-acquired it in 1925. In 1915 and for ten years thereafter the distribution system in Waldo was 6,600 volts. After the appellant re-acquired the property, and until 1926, the wires carried 6,600 volts. But in 1926, so far as the record shows, without any authority from the town of Waldo, the voltage was increased from 6,600 volts to 13,000 volts. The wires carrying the high voltage were not insulated. Two of them were wrapped, and, according to the evidence of appellant, the wrapping was for protection against the weather. But the third wire, the one nearest the building, was not wrapped or insulated in any way.

In 1928 a two-story brick building was erected on Main Street, the second story being 4 1/2 feet from the inside wire, the one that was not wrapped or insulated, and this wire was on a level with the top of the windows in the second story.

Appellee's intestate, Virgil L. Cates, was in the employ of the Gay Oil Company of Little Rock, which company operated a filling station in the building above mentioned. His duties for his employer took him to Waldo, and, on November 15, 1928, while there, he discovered an electric sign which had not been attached to the building. He employed a contractor, Frank Spradling, to put up the sign, and attach it to the building which was done according to directions. This was accomplished by twisting together two No. 9 wires, attaching them to the end of the sign, running them through a vent hole in the wall of the building and fastening them to a joist in the attic above the second story, which left the sign hanging about 16 feet above ground. After the wire was fastened to the joist in the attic, Spradling's helper, Johnson, broke off the surplus wire, and pushed it back through the vent hole. Spradling, who was on a ladder near the sign, was pulling the surplus wire through the vent, and, by reason of a crook on the end of the wire it caught in the mortar joint between the brick. The lower end of the wire extended down to the ground and appellee's intestate took hold of it to assist Spradling in pulling it through the vent. Spradling jerked the wire loose, and it fell over against the heavily charged electric wire, causing a short circuit, the entire force of the electric current passing through Cates' body, which caused his death.

This suit was instituted by his widow as administratrix to recover damages for herself and two minor children, and for his estate. The trial resulted in a verdict and judgment against appellant for $ 10,000.

As stated by appellant: "Nothing is involved in this appeal except the sufficiency of the testimony to sustain the verdict." And appellant insists the case should not have been submitted to the jury. Therefore, there is no question for us to consider, but the sufficiency of the evidence to sustain the verdict.

The ordinance provided, among other things, that the wires shall be insulated so as not to endanger life or property in the maintenance and operation of the aforesaid light and power plant.

Section five of the ordinance provides, among other things, that upon the acceptance in writing by the Arkansas Power & Light Company, filed with the clerk or recorder of the incorporated town of Waldo, Arkansas, shall constitute a contract between the Arkansas Light & Power Company, its successors and assigns, on the one hand, and the incorporated town of Waldo, Arkansas, on the other.

Thereafter, the Arkansas Power & Light Company accepted in the language above set forth, and it thereby became a contract, binding upon both parties.

The evidence introduced on the part of the appellant tends to show that the provisions of the ordinance were complied with except the insulation of the wires, and appellant insists that there is no negligence on the part of the appellant for failure to insulate its wires. They earnestly contend that because witnesses testify that, if the wires had been wrapped, it would have been no protection, but that does not in any way show that if the wire had been properly insulated it would not have been a complete protection. It may be that no type of wrapping could have been a protection, but this ordinance was passed and accepted by the Arkansas Power & Light Company, and became a contract which the Arkansas Light & Power Company and its successors were bound to comply with. And appellant insists that insulation can only mean the proper and standard size and type of poles and cross-arms and insulators.

The ordinance provides that the company shall always use the latest method of construction and good material. If appellant's contention were true, that would cover all that it was required to do under the ordinance, because its contention is that proper construction meant the standard construction, and that they complied with the ordinance in that way. But the ordinance says they must do that, meaning, certainly, in addition to that, the wires shall be insulated so as not to endanger life or property.

Appellant does not contend that it insulated the wire so as to be of any protection whatever, but insists that, "but from the standard point of the public, it is now recognized as safer to have 6,600- and 13,000-volt wire bare, and this distinguishes the high voltage from the low voltage wire, and acts as a signal to put the public on notice that, since these wires are bare, they carry a high voltage and should be avoided." But that is not the ordinance; not the contract. The contract is to insulate the wires, and by this promise to insulate the wires it secured the passage of the ordinance. It was not required to accept the ordinance, but it did do so and the ordinance itself expressly provided that, when it did, it became a contract.

Some of appellant's witnesses testify that it would be expensive and impracticable, and that it would not be feasible. Whether it was not feasible or practicable and was very expensive is immaterial. The company contracted to do this. It evidently knew at the time that it could insulate the wires of 6,600 volts, and knew whether it was feasible, knew how expensive it would be, and knew whether it was practicable. It certainly knew more about these things than the other contracting party, and it agreed to do this.

"Inconvenience, or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful. Parties sui juris bind themselves by their lawful contracts, and courts cannot alter them, because they work a hardship. The rights of the parties must be measured by the contract which they themselves made. A contract is not invalid, nor is the obligor therein in any manner discharged from its binding effect, because it turns out to be difficult or burdensome to perform. Nor will unforeseen difficulties, however great, excuse him. The law regards the sanctity of contracts." 6 R. C. L. 929.

Most of appellant's witnesses did not testify that it would be impossible to insulate wires with 13,000 volts, but they testified that it would be expensive. They, however, did not testify to facts showing how expensive it would be or how much it would cost to insulate the wire. They simply testify that it would be expensive, and one witness says it would be ridiculous.

The fact that it is expensive or ridiculous would not excuse the appellant from performing its contract. But, if it did, the testimony in this case is not with reference to any facts; no witness...