Southwest Power Company v. Price
| Decision Date | 02 December 1929 |
| Docket Number | 25 |
| Citation | 22 S.W.2d 373,180 Ark. 567 |
| Parties | SOUTHWEST POWER COMPANY v. PRICE |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Greenwood District; J. Sam Wood, Judge; affirmed.
Judgment affirmed.
Evans & Evans, James B. McDonough and Frank L. Wolf, for appellants.
Fuller Porter & Fuller, Warner & Warner and G. C Hardin, for appellee.
Appellee is the widow and administratrix of the estate of Henry Clay Price, deceased. She brought this action in her representative capacity to recover damages from appellants for the death of her husband, for the benefit of herself and minor child. The Southwest Power Company and O. B. Hanks will hereafter be referred to as the power company and Hanks.
Henry Clay Price was a lineman in the employ of the power company. In January, 1928, he was engaged with Hanks and other employees of the power company in rebuilding or repairing its high-powered transmission lines extending along the highway between Mansfield and Booneville. On January 26, 1928, while engaged in putting in a new pole in the place of an old one, and while removing the three wires, carrying 33,000 volts of electricity, from the insulators on the old pole, so that it could be removed, and the wires attached to insulators on the cross-arm of the new pole, he was electrocuted in the following manner: Price climbed up the old pole, and Hanks had climbed the new pole. They had detached the outside wires from the old cross-arm, attached jew-claws to them, and caused them to be pulled out of the way by ropes attached to the lower ends of the jew-claws, and fastened to some object on the ground, and were engaged in removing the middle or third wire from the old pole and elevating it so as to get it in the clear. This was done by Hanks passing a jew-claw up the new pole through a rope loop held open by Price, hooking the jew-claw on to the wire, pushing the wire up, then tying the rope in that jew-claw around the pole so as to hold it in the clear of the poles and the work to be done on them. This particular jew-claw is an instrument nine feet long, with a hook at one end, with a wooden handle attached to the hook, and with a threaded bolt that closes the hook by turning the wooden handle. The hook or claw is "U" shaped, and when the handle is turned to the right the threaded bolt is forced up into the hook or claw, and, when securely fastened on the wire, prevents the wire from falling out of the hook.
The evidence is in dispute as to whether Hanks or Price placed the jew-claw on the middle wire, and counsel for appellant concede that, since there is a conflict in this regard, the finding of the jury is against it. After the jew-claw had been placed on the wire, Hanks and Price pushed it up in the clear, and Price was in the act of tying the rope in the bottom end of the jew-claw to the pole to hold it in its then position, and, while holding to one of the braces on the cross-arm, the wire, heavily charged as aforesaid, fell out of the jew-claw and down on to the metal cross-arm, creating a short circuit, which communicated the whole force of the electric current into the body of appellant, killing him immediately.
The charge of negligence relied upon, and the only one submitted to the jury in this case, was that Hanks, after attaching the jew-claw to the wire, negligently failed to close up the opening in the "U" shaped hook or claw on the jew-claw by turning the handle until the threaded bolt pressed tightly against the wire. The case was tried to a jury, which resulted in a verdict and judgment against both appellants for $ 30,000.
Many errors of the trial court are assigned and urged for a reversal of this case. The first is that the court erred in denying the petition of the power company for the removal of this case to the United States District Court. The power company, a corporation, is a nonresident of this State, incorporated under the laws of Delaware. Hanks is a citizen and resident of the State of Arkansas, and the appellee is a citizen and resident of the State of Oklahoma. The suit was filed in the circuit court for the Greenwood District of Sebastian County, on August 21, 1928, and service was had on Hanks on August 24, and on the power company on August 29, 1928. The regular terms of the circuit court, as fixed by law, are held in the Greenwood District on the first Mondays of January and July of each year. On July 16, 1928, while the court was in regular session, it entered an adjourning order, adjourning court until September 27, 1928. On that date court was in special session, and, after completing the business before the court, it adjourned until court in course.
The petition and bond for removal were filed by the power company December 28, 1928, three months after the adjourned session of the circuit court in the Greenwood District. Section 29 of the Judicial Code of the United States provides that, where a party entitled to remove a suit from the State court to the District Court of the United States, and desires to do so, "he may make and file a petition, duly verified, in such suit in such State court, at the time, or any time before the defendant is required by the law of the State or the rules of the State court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the District Court to be held in the district where such suit is pending."
The power company was therefore required to file its petition and bond for removal in the State court within the time it was required by the laws of Arkansas to plead, and it makes no difference that a default has not been taken. K. C. Ft. S. & M. R. R. Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963; Southern Pacific Ry Co. v. Stewart, 245 U.S. 359, 38 S.Ct. 130, 62 L.Ed. 345; K. C. S. Ry. Co. v. McGinty, 76 Ark. 356, 88 S.W. 1001; Midland Valley R. R. Co. v. Hoffman Coal Co., 91 Ark. 180, 120 S.W. 380.
In the Daughtry case, supra, the court said: "The statute is imperative that the application for removal must be made when the answer is due, and, because a plaintiff in error does not take advantage of his right to take judgment by default, it cannot be properly held that he thereby extends the time for removal."
In the Midland Valley Railroad Company case, supra, this court said:
The question then to be determined is, when was the power company required by the statutes of Arkansas to plead? Section 1139, C. & M. Digest, provides: "In all civil actions the time fixed in the summons for the defendant to answer shall be within twenty days after service, when the summons is directed within the State, and thirty days when it is directed outside the State."
Section 1208, C. & M. Digest, provides:
In Tuggle v. Holman Real Estate Co., 126 Ark. 25, 189 S.W. 169, this court said, speaking of the above sections of the statute: "The effect of these amendments is to require the defense to any complaint or cross-complaint to be filed before noon of the first day the court meets in regular or adjourned session, where the summons has been served twenty days in any county in this State; and judgment by default may be rendered on any day of any regular or adjourned session when the defense has not been filed on or before noon of the first day of court twenty days after the service of summons."
The statute is clear. There is no room for construction. The language of the court in the...
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