Arkansas Power & Light Co. v. Abboud

• Decision Date: 19 October 1942
• Docket Number: 4-6779
• Citation: 164 S.W.2d 1000,204 Ark. 808
• Parties: ARKANSAS POWER & LIGHT COMPANY v. ABBOUD
• Court: Arkansas Supreme Court

164 S.W.2d 1000

204 Ark. 808

ARKANSAS POWER & LIGHT COMPANY v. ABBOUD

4-6779

Supreme Court of Arkansas

October 19, 1942

Appeal from Yell Circuit Court, Danville District; J. B. Ward, Judge on exchange; affirmed if remittitur is entered.

Judgment affirmed; otherwise cause remanded.

House Moses & Holmes; Hays & Wait and J. M Smallwood, for appellant.

Ferguson & Madole; Caviness & George and Caudle & White, for appellee.

OPINION

GRIFFIN SMITH, C. J.

November 10, 1941, in an appeal styled "Abboud v.Arkansas Power & Light Company," the trial court's judgment on an instructed verdict was reversed because jury questions were involved. 203 Ark. 6, 155 S.W.2d 584. See, also, concurring opinion at page 10 of the Arkansas Reports, and at page 586 Southwestern Reporter. On retrial judgment was in favor of the plaintiff for $ 3,999. The power company has appealed. Its contention is that most of the service interruptions were occasioned by acts of God, others by agencies over which it had no control, and that due care was exercised.

In August, 1940, plaintiff elected to base her suit upon contract as distinguished from tort. An amended complaint alleged that in August, 1936, C. B. Fowles, the power company's district manager, advised appellee to purchase all-electric equipment, including units necessary to operate a commercial hatching plant. Assurance was said to have been given, which is referred to as a guarantee that the company would supply adequate electric service to efficiently operate the plant. It was further alleged that, relying upon representations service would be sufficient, appellee (January 5, 1937) began business as Danville Electric Hatchery, the various units having a capacity of 32,000 eggs. ^[1]

Average cost of 95,000 eggs was four cents, or $ 3,800. Plaintiff's contention is that if continuous current sufficient to operate the machines had been supplied, 66,500 chicks would have hatched, resulting in net profit of $ 1,400.

Severed service ranged from thirty minutes to forty-six hours. Chickens actually hatched were cripples of very little value. Appellee estimates that sales amounted to $ 100 or $ 200.^[2]

Power supplied the area involved comes from Sterlington (La.) by way of the company's North Little Rock substation, thence to Morrilton, Russellville, Dardanelle, Ola, and Danville. Appropriate transformation of voltage is made at various points. From transformers at Russellville the step-down is to 13,000 volts for dispatch to Dardanelle. Between Russellville and Dardanelle the service is tapped for use of Bernice Anthracite Coal Mines. The lateral leading from the power company's primary wires to the mines is owned by the coal company and is maintained by it. Switches, with fuse protection, were on a pole set in the coal company's property adjoining the power company's lines. The coal company employed an electrician who was supposed to inspect and repair these switches and the lines from such connections to the mines.

The interruption of January 19, according to a power company witness, resulted from the act of a coal company agent who "used a heavy fuse, and it wouldn't strip out." It seems, however, that an oversize fuse was not the cause, because a power company lineman testified that ". . . somebody at the mine had fused the switch with copper wire--made it solid." A dog had crawled into the mine company's substation. It then got into the conductor and caused a short- circuit, with resulting interruption of five hours at Danville.

It is in evidence that the power company had been gradually improving its service during the past few years. Some of the property was acquired prior to 1916. Appellee, in August, 1936, made her contract for electricity shortly after she had returned from a convention in Kansas City, where an inspection of electrically-heated incubators and brooders had been made. Appellant's answer denies any special contract to supply continuous current sufficient to operate machines such as those Mrs. Abboud says were being discussed. Fowles testified appellee came with catalogues and other printed matter illustrating units she desired, and that she asked whether the company's lines to and equipment at Danville [were sufficient] ". . . to operate the machines plaintiff desired to install." It is conceded that Fowles ". . . informed plaintiff the current furnished by defendant corporation's lines at Danville was sufficient to operate the machines such as plaintiff contemplated installing."

A construction of this language in the concurring opinion of November, 1941, was that the expression "enough current," testified by Mrs. Abboud as having been used by Fowles, had reference to sufficient voltage, amperage, etc.,--that is, the energy sufficient to operate heating units and fans. It was then said that the term "continuous current sufficient to operate the machines" contemplated maintenance of an unbroken flow; or, if broken, duration should not be so protracted as to interfere with incubation of eggs or care of the product.

T. H. Abboud, appellee's husband, testified he was present when appellee discussed their needs with Fowles. They had "gone over" past troubles-- such as interruption of power--and Fowles is represented as having said: "You go on back, lady. The Arkansas Power & Light Company is a service organization. We will take care of your needs." This was in response to appellee's statement that "We've got to know if we are going to have this current." Appellee's further testimony was that Fowles agreed ". . . to furnish sufficient, adequate current, continuous current, to operate the hatchery."

A letter written by the power company April 7, 1937, was received by appellee in response to complaints of bad service. It is printed in the margin. ^[3] Although in the complaint appellee stated that service interruption January 23 was two hours, in her testimony the period is fixed as forty-six hours. Her statement was that the current went off at ten o'clock Saturday night; that it remained "dead" that night and all day Sunday, ". . . and came on Monday morning for a little while."

The law as declared in the former appeal is that the contract did not require the defendant to compensate damages if an act of God prevented it from furnishing sufficient energy to operate the plant, or if the trouble was traceable to acts over which the company had no control. . . . "It was only bound on the contract in case it was guilty of negligence in furnishing electrical power," says the opinion.

The first interruption complained of occurred January 12. Five thousand eggs had been placed January 5, and an equal number January 7. The break covered a period of two hours and forty minutes, but on the same day five thousand additional eggs were put in the machines. Whether this act occurred before, after, or during the period of interruption is not clear. It is argued by appellant that appellee was negligent in continuing to deposit eggs in the machines after the contract had been breached. Conversely, it should be remembered that appellee had invested approximately $ 5,000 in electrical equipment, relying, as she says, upon Fowle's assurance that sufficient current would be supplied.

Publisher George Upton of Dardanelle Post-Dispatch, testified that during early January, 1937, severe weather occurred, with ice on trees, streets, and elsewhere. Recurrences were at intervals of a week or ten days:--"Foliage and ground were covered and glazed with ice: trees broke--practically all of them, as I recall. . . . This would have happened [according to my newspaper files] the week previous to January 21, [because the item refers to] 'last week'."

Appellee insists this testimony does not connect the interruption of January 12 with the storm. However, J. M. Patterson, weather observer at Danville for ten years, testifying from his records, found the following: "January 9, ice bending trees; January 10, ice still bending trees; January 11, ice on trees; January 12, sprinkle." Patterson then stated unequivocally that "During January sleet and ice were freezing on the timber. [Conditions] were the severest I have any recollection of in this part of the country. . . . Ice and sleet [caused the interruption of two hours and forty minutes at Danville complained of by Mrs. Abboud]. . . . I got my first call--my first trouble--developed about four o'clock that afternoon at Belleville. . . . Limbs broke off [of trees] and fell on our lines." ^[4]

The next interruption occurred January 19, and has been attributed to the coal company switch.

Appellee says power was off forty-six hours, beginning January 23. These breaks are accounted for by appellant with testimony by its linemen, and by an excerpt from Dardanelle Post-Dispatch, which was read into the record by its publisher. The newspaper reference is shown in the footnote. ^[5]

January 23, 24 and 25, were Saturday, Sunday, and Monday. These days corresponded with periods mentioned in the Post-Dispatch article. Editor Upton testified that "Every machine in my office is electrically equipped. I was vitally interested and went out to see what they were doing." Employes of the power company, he said, were engaged making repairs. Telephone lines were also down. His final statement is:--"The sleet storm was all over the country."

There is no explanation of the thirty- minute interruption of February 2.

Appellant says the undisputed evidence is that the break of February 9 (three hours and fifteen minutes) was caused...