Souter v. Carruthers

• Decision Date: 27 January 1964
• Docket Number: No. 5-3124,5-3124
• Citation: 237 Ark. 590,374 S.W.2d 474
• Parties: Hubert H. SOUTER et al., Ex'rs, Appellants, v. Dr. H. C. CARRUTHERS et al., Appellees.
• Court: Arkansas Supreme Court

Page 474

374 S.W.2d 474

237 Ark. 590

Hubert H. SOUTER et al., Ex'rs, Appellants, v. Dr. H. C. CARRUTHERS et al., Appellees.

No. 5-3124.

Supreme Court of Arkansas.

Jan. 27, 1964.

Smith, Williams, Friday & Bowen and B. S. Clark, Little Rock, for appellants.

Felver A. Rowell, Jr., Morrilton, for appellees.

JOHNSON, Justice.

This is an appeal from a judgment for damages sustained as a result of floodwater inundating land. The judgment is against appellants Hubert H. Souter and The First National Bank in Little Rock, co-executors of the estate of H. Avery Souter, deceased, who during his lifetime was engaged in the contracting business. Appellees are owners of certain farm lands near Morrilton which are part of the Point Remove Levee and Drainage District of Conway County.

A levee was constructed several years ago pursuant to an agreement with the U. S. Corps of Engineers along Point Remove Creek and near the Arkansas River. A drainage ditch was also constructed by the Engineers and thus the flood protection and drainage sought by the District was accomplished.

A levee Box consisting of two 66-inch drainage pipes or culverts and a flood control gate was built into the levee. The culverts are located at the base of the levee and are utilized to control drainage from the lands involved. In 1961 it was determined that the culverts were defective and should be repaired. The Engineers agreed to perform the work and the necessary plans and specifications were prepared by that agency. Thereafter the Engineers awarded a contract to H. Avery Souter which was executed on October 25, 1960. Souter moved his equipment onto the job site and started the work immediately. The work was under the direct supervision and control of the Engineers.

The plans specified that the levee should be cut initially down to the culverts. The elevation of the levee is 310 feet above sea level and the culverts are at 282 feet. This excavation was completed and Souter then constructed two coffer dams, one on the river side of the levee, and the other on the land side. Due to continued rainfall Souter requested and received permission from the Engineers to discontinue the work. Before being allowed to do so he was directed by the Engineers to construct a temporary dam between the flood gate and the levee.

The cessation of work was in the spring of 1961 and thereafter two floods occurred, both of which involved Point Remove Creek and the Arkansas River. The first occurred in April and caused no damage other than to the temporary dam and this was soon repaired. The second flood in May washed over the dam, flooded appellees' land, and damaged certain growing crops. The water also caused a delay in planting soybean and cotton crops resulting in a below average yield.

Appellees filed their complaint alleging that Souter was negligent in leaving the levee in the above condition with no protection against overflow and in failing to refill the levee after receiving repeated warnings to do so.

Shortly after the complaint was filed, Souter died and the action was revived in the name of the co-executors of his estate.

This cause was tried before a jury and a verdict was returned for appellee Dr. H. C. Carruthers in the sum of $5,000.00, and for appellee Roy Carruthers in the sum of $3,000.00. Judgment was entered in accordance therewith, from which appellants prosecute this appeal.

For reversal, appellants rely principally upon two points, which are: (1)...