ARKANSAS POWER & LIGHT Co. v. HOOVER.
Arkansas Supreme Court
January 12, 1931
1065
Tom J. Terral and William F. Denman, for appellee.
MEHAFFY, J. J. T. Hoover, a young man twenty-one years of age and unmarried, was killed in the town of Brinkley, Arkansas, about seven o‘clock P. M., November 29, 1928, by coming in contact with a live wire carrying 2,300 volts of electricity.
Appellant owned and used wires charged with electricity in the operation and maintenance of a power and light system in the town of Brinkley.
It is alleged that the appellant, its agents and servants, had carelessly and negligently allowed and permitted its electric light wires on Main Street of the town of Brinkley to become broken and to fall on and across the concrete sidewalk on Main Street of the town of Brinkley. It is alleged that the lines were old, worn, and defective, and that the insulation thеreon was worn out and completely gone at the place where the wire had fallen, over the above said sidewalk where plaintiff‘s intestate was killed. The public, and especially the plaintiff‘s intestate, used this sidewalk at the place where plaintiff‘s intestate was killed, many times each day in going about the town of Brinkley. On the date of the injury, November 29, 1928, after dark, plaintiff‘s intestate, while going from his home to the business section of the town of Brinkley, attempted to pass the point where said wire was across the sidewalk, ran into said wire, and was horribly burned and electrocuted because of the carelessness of the defendant, Arkansas Power & Light Company, its agents and servants.
It was alleged in the complaint that the Arkansas Power & Light Company was negligent in using old, worn, and dеfective wires at and near the point where plaintiff‘s intestate was killed; that appellant knew, or by the exercise of ordinary care could have known, that said wires were old, worn, and defective and that the insulation was completely gone, at a point where many peo
The appellant filed a motion to quash service of summons, and alleged that the person served as agent of appellant was not an agent, servant, or employee in charge of a branch office or other place of business of defendant. The motion to quash service of summons was overruled and exceptions saved. Appellant thereupon filed answer denying all the material allegations of plaintiff‘s complaint.
Mrs. Mallie Hoover, mother of J. T. Hoover, testified in substance that she was the administratrix of the estate of J. T. Hoover, deceased; that he died on October 29, 1928, and was twenty-one years old the ninth day of August before his death. Witness saw him alive at his home on the 29th of November at night, some time after six o‘clock. He had been employed up until that afternoon and had come home to get work elsewhere. He worked all the time at something; gave part of his earnings to his father; he had never married. Copies of letters of administration were introduced. Witness further testified that her son had always lived in her house. He had worked away from Brinkley but Brinkley was always his home. He worked in Stuttgart helping his father. He went to work in the bаnk when he was seventeen or eighteen. Witness said she had seen her son give his father clothes but could not say whether she ever saw him give him money. She had seen checks he had written
M. M. Hoover, father of J. T. Hoover, testified also about his son and about his character and inclination to work. The father was selling hats at the time the son was killed, but was not able to do much work; was 60 years old at the time of the trial. Witness could not say that deceased was employed at the time he was killed, but on Sunday before he saw his son and he was employed then. His son was employed in 1923 and 1924 and earnеd $65 and his board. He then went to work at the bank; worked at the bank about three years and then went on a rice farm and ran a pump for a while; when he left the rice farm he went to Pine Inn Camp, and was working there the Sunday before he was killed. He was employed constantly, all the time; could not tell the dates or instances when his son gave him money, but he gave it to him at various times on various occasions; would just hand it to him; biggest sum he ever gave him was $35; gave him wearing apparel. Witness’ health has been poor for last ten years, and he was unable to work; stated that he believed his son gave him $50 once when he bought an automobile.
R. L. Blakely testified about the place of business, but this testimony was excluded by the court.
The evidence shows that the deceased, J. T. Hoover, was walking along on a concrete sidewalk and came in contact with one of appellant‘s wires which had fallen on the sidewalk and was injured and killed. The insulation was worn off of the wires, the wire was rubbing against the tree and limb. This had been reported to the appellant on numerous occasions; and they would go out and put new insulation on. Wires were just strung through the trees, and every time there was a wet spell or the wind would blow there would be fire and burn the trees. There were no poles at that place.
Some of the witnesses testified that the wires went through the trees and that the wire was naked and bare,
The wire at the place where Hoover was injured, was burned in two. It was a number 6 wire and carried 2,300 volts. The wires pass through the branches of the trees between the poles. The accident happened on Thanksgiving evening about 6:50. There was a big blaze up in the tree and down on the ground.
The representatives of the appellant not only had been notified, but reached the place where the wire was down before Hoover did. Appellant‘s employee knew where the wire was on the sidewalk, but was trying to find the other end. While he was looking for the wire up in the trees, Hoover came along and was practicаlly on the wire when witness saw him and hollered at him. A rug was obtained and put around the wire, and in this way the wire was pulled away from him. When Hoover came in contact with the wire, he did not fall, but stood there and groaned, and when the wire was pulled away from him he fell. Appellant‘s witnesses testified in substance that Hoover was killed instantly. A number of witnesses, however, testified that he lived and suffered three or four hours. Witnesses tried from the time he was injured until about eleven o‘clock to resuscitate him. Assisting in the effort to revive him was a physician and some of the employees of appellant.
Appellant contends that the court erred in overruling its motion to quash the service. The summons was served on L. A. Atkins, who testified that he lived at Waterloo in the southern part of Nevada County, Arkansas; was manager of the Guthrie Bros. Drug Store, which is owned by the Guthrie Brothers of Prescott; that he was not in charge of any office or place of business of the Arkansas Power & Light Company in Nevada County. Witness said the only way he was connected with them is they send him the local bills for electricity for the houses in Waterloo through the local office at Stephens, and that they come in there and pay their bills and witness receipts for them. Bills for the houses supplied with elec
Arkansas Power & Light Company has a warehouse at Waterloo, but no other place of business. Witness collects local bills. Wires and poles are strung in different parts of the county and current is sold to users about Waterloo. Bills are made out in Stephens and mailed to witness, who puts them in his desk, and, if the parties come in, receives the money from them; puts the money in the safe until the 15th of the month and then a fellow comes out from Stephens, takеs the duplicates, figures out what witness has collected, and the amount is turned over to him. Witness works for the drug store, which pays him a salary. The telephone exchange is also in the same building, and witness collects for them, but does not go out of the office for them. Witness is the person they pay the bills to for the Arkansas Power & Light Company, the local light bills; does not know whether he is the only man at Waterloo authorized to receive money for the company. Bills are sent to witness, he receives
C. A. Brussard testified that he knows Atkins, who runs the drug store, and that he goes there to pay the light bill; does not know whether Atkins performs any service for the company further than to collect bills. Witness takes current from the Arkansas Power & Light Company and pays the bill to L. A. Atkins. If witness remembers, the receipts are signed either L. A. Atkins, or Arkansas Power & Light Company, by L. A. Atkins.
W. C. Clark testified that he lives at Waterloo and is trouble shooter for the Arkansas Power & Light Company; that the company has a warehouse at Waterloo, and they keep a bunch of stuff in stock for emergency. The warehouse serves the Waterloo territory with lights and power, residences, oil field motors, and things of that sort. Waterloo is not a very largе town, and the field is scattered. It is an oil field town. Witness knows Atkins, and says he is just an agent there for the Arkansas Power & Light Company for them to pay their bills
The only question is whether service on Atkins was such service as is required under
Appellant cites and relies on Ft. Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S. W. 99. In that case the court, among other things, said: “The words ‘branch office’ and ‘other place of business’ are not synonymous, as contended by the learned counsel for appellant. The word ‘other’ distinguishes the term ‘place of business’ from the term ‘branch office,’ and shows that the Legislature intended that wherever the corporation maintained a ‘place of business,’ whether they had or did not also have an office at the same place, that service could be had upon the corporation by service upon the employee in charge of the business at that place.”
The court also said in that case: “The agent, servant or employee in charge of a branch office, under the statute, must be one having authority to carry on the general business of the company. But not so as to the agent, servant, or employee in charge of the ‘other place of business.’ His authority may be only limited and special and confined to the particular business over which he has supervision. To be sure, the statute contemplates that there must be maintained a place where a well-defined line of business is carried on with an agent in charge of that business. Elliott was such an agent.”
The next case cited and relied on by appellant is Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6. In that case the court quoted with approval from the case in 115 Ark. as follows: “Any agent competent to conduct such a business could be depended upon with reasonable certainty to apprise the corporation of the service upon him. It was the design of the Legislature that service could be had upon an agent of this character, and that when so obtained it should constitute service upon the corporation itself.”
In the instant case the agent was intrusted with the money collected, his duty being to receive and receipt for
“Brown was at least the agent of the company at El Dorado for the purpose of representing it in making the collection of dues and assessments from the members of the company holding certificates therein, and receipting for the same. He signed receipts as local secretary; that is he designated himself as local secretary of the plaintiff company. In his testimony he said he was collection agent for the company at El Dorado. In the notices of assessment sent out from the home office he is referred to both as local secretary and as branch secretary of the company. He also signed one of the papers in evidence as secretary of the local board. * * * We do not think it could do any business here through an agency for that purpose, without at the same time being here for the purpose of service. If the company thought it proper and to its interest to have a local secretary or secretary of a local branch of said company here to do business for them, even to the extent of collecting and receipting assessments and forwarding them to the home office, we think, in the absence of any other officer or agent of the compаny upon whom service could be had in the county, that service upon him is good under our statute.” S. W. Mutual Ben. Assn. v. Swenson, 49 Kan. 449, 30 Pac. 405.
Appellant‘s next contention is that instructions 1 and 2, given in behalf of appellee, are abstract and in conflict with instruction No. 4 given in behalf of the defendant. Instruction No. 1 told the jury “that the burden оf proof in this case is upon the plaintiff to show by a preponderance or greater weight of the evidence that the deceased, James Talmadge Hoover, lost his life on account of the negligence of the defendant, and to show further that the negligence of the defendant, if any is shown, was the proximate cause of the deceased‘s death, and further that the deceased was not guilty of contributory negligence.”
Instruction No. 2 complained of is as follows:
“You are instructed that companies supplying electric currents are bound to use reasonable care in the construction and maintenance of their lines. This care varies with the dangers that will result from the negligence on the part of thе company, if any. Reasonable care is such care as a reasonable man would use under ordinary circumstances, and, in determining whether such care has been exercised, the jury will take into consideration the location of the lines, whether in thickly or sparsely settled communities, the harmless or dangerous character of the current carried by such lines, and their remoteness or proximity to the people who may pass by and all other circumstances in evidence.”
Neither of these instructions is abstract, but each is a correct statement of the law.
Appellant contends that no one can say which of the charges of negligence the jury found the aрpellant to be guilty of. That may be true, but we know that the verdict was not based on the appellant‘s failure to insulate
Moreover, this instruction was erroneous and should not have been given. We have repeatedly held that it was the duty of the company to keep its appliances in safe condition and that either the wires must be kept insulаted, or must be so located as to be, comparatively speaking, harmless. If the company does not choose to properly insulate a deadly wire of its maintenance, it must place the same under ground, at a high altitude, or at some inaccessible place.
We said in a recent case: “The authorities appear to be unanimous in holding that there is no such duty, [to insulate all wires] but the cases do hold, as we understand them, that this duty must be performed, or other sufficient safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated. Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846.”
The law as to the duty of elеctric companies was discussed at length in the above case, and we do not deem it necessary to cite the authorities here or discuss it further, because there is no contention about the fact that on the question of negligence and contributory negligence the case was submitted to the jury on proper instructions, and the jury‘s finding is conclusive.
Appellant next contends that the case should be reversed because of prejudicial remarks made by both counsel for appellee in their arguments to the jury. After the remarks to which appellant objected were made, the court admonished the jury that they should try the case solely according to the law as given by the court and the evidence from the witness stand, and, when objection was
There were some remarks of one of the attorneys for the plaintiff to which objection was made and the court overruled the objection. One of these remarks was as follows: “If the defendant in this case was an individual, it would be indicted and sent to the penitentiary.” Appellant urges that there is nothing in the case to send either an individual or a corporation to jail, the penitentiary, or even to impose a fine upon either of them. We do not agree with appellant in this contention. The undisputed evidence in this case shows that Hoover was killed by the negligence of the appellant, and the statute provides that if the killing be in the commission either of an unlawful act or in the prosecution of a lawful act, done without caution and circumspection, it should be manslaughter. And every person convicted of manslaughter may be imprisoned in the penitentiary. Therefore if an individual in the prosecution of a lawful act does so without due caution and circumspection, that is if he does it negligently and kills some person, he is guilty of manslaughter, and the statement of the attorney to which objection was made was not an erroneous statement as suggested by appellant. Moreover, statements like the above are frequently made in the heat of argument and everybody, including the jury, understands the circumstances under which they are made, and in this case the remarks were not prejudicial.
The attorney also said in his closing argument: “If the witnesses for the defendant testified against Henry Yocum, they would not have a job in the morning.” Henry Yocum referred to is one of the attorneys for the defendant.
The attorney also said: “Gentlemen, go out there and in the name of God, and law, have a backbone—go out there and think of yourselves, your own flesh and
Appellant argues that this statement was loaded with dynamite. Most of the statement was based on the evidence. Certainly that the wire was down, and that appellant had been notified many times is shown by the undisputed evidence, and whether the lawyer tells the jurors to think about their own children or not they would certainly do it. This court has many times discussed the question of remarks made by counsel in argument of a case, and we call attention to the following cases: St. L. I. M. & S. R. Co. v. Boback, 71 Ark. 427, 75 S. W. 473; American Ins. Co. v. Mordic, 168 Ark. 795, 271 S. W. 460; United Order of Good Samaritans v. Lomax, 172 Ark. 330, 288 S. W. 709; St. L. I. M. & S. R. Co. v. Hairston, 125 Ark. 314, 188 S. W. 838; St. L. I. M & S. Ry. Co. v. Raines, 90 Ark. 406, 119 S. W. 665; St. L. I. M. & S. R. Co. v. DeVaney, 98 Ark. 83, 135 S. W. 802.
In this last case the court said: “Thе statement of the attorney in his argument in this case that the defendant had treated the plaintiff worse ‘than you would treat a dog,’ was only the expression of opinion at the most, the jury could not have understood thereby the counsel was making a statement relative to a fact not adduced at the trial.”
And in the Boback case mentioned above when objection was made to remarks of the attorney, the court said: “Now, this language, being delivered near the climax of the closing argument and under the excitement thereof, may be somewhat exaggerated as well as a little mixed. * * * If there be some exaggeration, we must remember that it is within the province of counsel for plaintiff in an action for damages to take a sympathetic view of the client‘s injuries and to indulge in oratorical flights in
Counsel for appellant called attention to a number of authorities where this question is discussed in addition to the ones we have mentioned, but it must be kept in mind that an attorney in making an argument has the right to impress his views on the jury by all proper means, and in the heat of argument may say things at that time that he would not otherwise say. It should also be kept in mind that the jury are composed of men of sense and honesty, and are about as ready to resent unfairness as any class of men in the country. Moreover, there must necessarily be left large discretion with the trial court, who presides at the trial, and hears the entire case tried, and the presumption is also that he would not intentionally permit any unfairness or improper conduct on the part of either attorney.
We do not think that the remarks of the counsel which were objected to call for a reversal of the case.
It is next contended by appellant that there is no substantial evidence to support the verdict in the sum of $10,000 for the benefit of the father who was the next of kin, and that the verdict of $10,000 is grossly excessive. We do not think that the evidence is sufficient to sustain a verdict of $10,000. There is, however, substantial evidence from which the jury might have found that the deceasеd did contribute considerable amounts to his father, and that he would continue to do so. We have reached the conclusion, however, that the evidence as to this question is not sufficient to sustain a verdict for more than $5,000, and the judgment in favor of the father for $10,000 is therefore reduced to $5,000.
Appellant‘s next contention is that the evidence is not sufficient to support a verdict of $7,000 for pain and suffering, and this argument or contention is based on the alleged fact that there is no substantial evidence in the record to show that deceased ever suffered any conscious pain and suffering. We do not agree with appellant
In the case of the Mo. Pac. Rd. Co. v. Bushey, 180 Ark. 19, 20 S. W. (2d) 614, a verdict of $9,463 for pain and suffering was upheld. There was a total judgment in the abоve case for $48,500. In that case the deceased suffered about three hours.
The judgment for $7,000 for pain and suffering is sustained by the evidence.
The judgment of the circuit court will be modified as to the judgment in favor of the father, reducing that to $5,000. In all other things it is affirmed. It is so ordered.
SMITH and MCHANEY, JJ., dissent, and BUTLER, J., dissents because of the remarks of attorney.
BUTLER, J., (dissenting). I agree with the majority that the evidence is ample to establish the negligence of the appellant and the ordinary care for his own safety of the deceased. I also am of the opinion that there was substantial evidence to establish conscious pain and suffering, and that the verdict of $7,000 for such was not excessive.
But I can see no substantial evidence to warrant a verdict for more than nominal damages for loss of contribution to the father, the next of kin. The deceased had attained his majority, and no substantial contribution to
The witnesses whose testimony tended to еxonerate appellant from liability were its employees. Henry Yocum was its attorney and active in the defense. One of appellees’ counsel during the course of his argument, over the objection and exception of appellant, was permitted to tell the jury in effect that if these witnesses had testified against Henry Yocum they would not have a job the next day. Statements similar, in their import have been frequently condemned by this court and held to be reversible error to permit them to be made to the jury. These decisions, none of which have been overruled or their authority impaired, call for a reversal of this case.
I therefore hold that for the reasons statеd this case ought to be reversed and remanded for a new trial, and I respectfully dissent.
SMITH, J., (dissenting). I do not get far enough into this case to consider many of the assignments of error which the majority discuss, for the reason that, in my opinion, there was no service and the motion to quash the service of summons should have been sustained.
The statute (
Now, it does appear that appellant maintained a warehouse at Waterloo, in charge of a trouble shooter by the name of W. C. Clark, and that it kept in this warehouse various parts and materials for maintaining and repairing its power lines. But there was no service on Clark. The service was had on L. A. Atkins, a clerk in the Guthrie drug store; and there is no contention that there was any connection between appellant and the Guthrie drug store. Atkins, an employee of this drug company, madе collections for and remittances to the appellant power company, for which he was paid $10 per
If the service upon Atkins did not meet the requirements of the statute—and I submit it did not—then, certainly, it could make no difference that Atkins may have advised appellant company what had happened. There was no authority to serve Atkins with a copy of the summons, his report that this had been done comes to naught. The requirements of the statute could not be nullified and dispensed with in this manner.
I therefore respectfully dissent.