{
  "id": 1444192,
  "name": "Arkansas Power & Light Company v. Abboud",
  "name_abbreviation": "Arkansas Power & Light Co. v. Abboud",
  "decision_date": "1942-10-19",
  "docket_number": "4-6779",
  "first_page": "808",
  "last_page": "818",
  "citations": [
    {
      "type": "official",
      "cite": "204 Ark. 808"
    },
    {
      "type": "parallel",
      "cite": "164 S.W.2d 1000"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "203 Ark. 6",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1447037
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/203/0006-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T21:22:22.082665+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Arkansas Power & Light Company v. Abboud."
    ],
    "opinions": [
      {
        "text": "Grieein Smith, C. J.\nNovember 10, 1941, in an appeal styled \u201cAbboud v. Arkansas Power & Light Company,\u201d the trial court\u2019s 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.\nIn 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\u2019s 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. Average cost of 95,000 eggs was four cents, or $3,800. Plaintiff\u2019s 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 $1,100.\nSevered 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.\nPower supplied the area involved comes from Sterlington (La.)-by way of the company\u2019s North Little Bock substation, thence to Morrilton, Russellville, Dardanelle, Ola, and Danville. Appropriate transformation of voltage is made at various points. Prom 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\u2019s 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\u2019s property adjoining the power company\u2019s 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.\nThe interruption of January 19, according to a power company witness, resulted from the act of a coal company agent who \u201cused a heavy fuse, and it wouldn\u2019t strip out. \u2019 \u2019 It seems, however, that an oversize fuse was not the cause, because a power company lineman testified that \u201c. ... somebody at the mine had fused the switch with copper wire \u2014 made it solid.\u201d A dog had crawled into the mine company\u2019s substation. It then got into the conductor and caused a short-circuit, with resulting interruption of five hours at Danville.\nIt 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\u2019s 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\u2019s lines to and equipment at Danville [were sufficient] \u201c. . . to operate the machines plaintiff desired to install.\u201d It is conceded that Fowles \u201c. . . informed plaintiff the current furnished by defendant corporation\u2019s lines at Danville was sufficient to operate the machines such as plaintiff contemplated installing. \u2019 \u2019\nA construction of this language in the concurring opinion of November, 1941, was that the expression \u201cenough current,\u201d testified by Mrs. Abboud as having-been used by Fowles, had reference to sufficient voltage, amperage, etc., \u2014 that is, the energy sufficient to operate heating units and fans. It was then said that the term \u201ccontinuous current sufficient to operate the machines\u201d 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.\nT. H. Abboud, appellee\u2019s husband, testified he was present when appellee discussed their needs with Fowles. They had \u201cgone over\u201d past troubles \u2014 such as interruption of power \u2014 and Fowles is represented as having said: \u201cYou go on back, lady. The Arkansas Power & Light Company is a service organization. We will take care of your needs.\u201d This was in response to appellee\u2019s statement that \u201cWe\u2019ve got to know if we are going to have this current.\u201d Appellee\u2019s further testimony was that Fowles agreed \u201c. . . to furnish sufficient, adequate current, continuous current, to operate the hatchery. \u2019 \u2019\nA 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.\nAlthough 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\u2019clock Saturday night; that it remained \u201cdead\u201d that night and all day Sunday, \u201c. . . and came on Monday morning for a little while.\u201d\nThe 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. . . . \u201cIt was only bound on the contract in case it was guilty of negligence in furnishing electrical power,\u201d says the opinion.\nThe first interruption complained of occurred January 12. Five thousand eggs had been placed January 5, and an equal number January 7. Tbe 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\u2019s assurance that sufficient current would be supplied.\nPublisher 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: \u2014 \u201cFoliage and ground were covered and glazed with ice: trees broke \u2014 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] \u2018last week\u2019.\u201d\nAppellee 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: \u201cJanuary 9, ice bending trees; January 10, ice still bending trees; January 11, ice on trees; January 12, sprinkle.\u201d Patterson then stated unequivocally that \u201cDuring 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 Dan-ville complained of by Mrs. Abboud]. ... I got my first call \u2014 my first trouble \u2014 developed about four o \u2019clock that afternoon at 'Belleville. . . . Limbs broke off [of trees] and fell on our lines.\u201d\nThe next interruption occurred January 19, and has been attributed to the coal company switch.\nAppellee 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.\nJanuary 23, 24 and 25, were Saturday, Sunday, and Monday. These days corresponded with periods mentioned in the Post-Dispatch article. Editor Upton testified that \u201cEvery machine in my office is electrically equipped. I was vitally interested and went' out to see what they were doing. \u2019 \u2019 Employes of the power company, he said, were engaged making repairs. Telephone lines were also down. His final statement is: \u2014 \u201cThe sleet storm was all over the country. \u2019 \u2019\nThere is no explanation of the thirty-minute inter-' ruption of February 2.\nAppellant says the undisputed evidence is that the break of February 9 (three hours and fifteen minutes) was caused when lightning broke a porcelain insulator at Morrilton, and that a blown fuse was responsible for the interruption of February 21, lasting an hour and forty-five minutes.\nThe defense is that lightning struck a transformer February 24 and occasioned the two-hour stoppage. While lightning as a cause may be inferred from the testimony of Henry Mabry, his exact statement is that \u201c. . . trouble developed in the substation [at Dan-ville] \u2014 burned the lightning arrester off the distribution system.\u201d The \u201cbad\u201d transformer was disconnected and two good ones were utilized \u201c. . . in order to give them light temporarily. The next morning we had to interrupt the service to change the transformers.\u201d A new transformer was sent from Russellville. The witness testified that the two units temporarily connected would have burned out if the overload had continued.\nTrouble March 3 was incidental to repairs to poles and lines, \u201c. . . these repairs, of course, having been necessary as a result of the severe sleet storms during January.\u201d One period of stoppage was three hours and forty-five minutes, another was for fifteen minutes.\nThe final interruption (two hours) occurred March 15, when poles supporting wires carrying 33,000 volts were replaced. It was necessary that the current be shut off because the line \u201c. . . couldn\u2019t be handled with \u2018hot sticks\u2019.\u201d\nOther Facts \u2014 and Opinion.\nAppellee testified she was told the power service from Russellville to Dardanelle would be improved. At the former hearing she testified that Fowles told her the company would reroute the line where it crossed the Arkansas river. At the time in question the stream was spanned from a tower on the north side to anchorage on Dardanelle Rock on the south side. In consequence, primary wires were strung along Front street in Dardahelle in close proximity to shade trees. Subsequent to appellee\u2019s losses the wires were attached to the bridge and brought across the river. Inferentiallyit is insisted that if this had been done between August, 1936, when appellee made her contract, and January, 1937, when the sleet storms occurred, falling limbs would not have interrupted service. It is in evidence that ice and sleet inore than an inch in thickness encrusted the wires, adding materially to their weight and to the tension under which they were normally operated.\nThere is nothing in the evidence to show that the sleet storms would not have damaged the lines if the bridge-route had been utilized. Testimony is convincing that communication was paralyzed by extraordinary conditions. \"What acts of precaution the power company could have adopted to guard against the unusual stress is not shown; and, of course, an assumption that the weather\u2019s fury would have been felt at one place, but not at another, is speculative. It is not denied that limbs on Front street trees were kept trimmed as far back as property-owners would permit. No break occurred in the power company\u2019s river span.\nAs we have formerly shown, the first batch of 5,000 eggs was \u201cset\u201d January 5, and a second lot of 5,000 was placed January 7. January 12, when the first trouble came, appellee deposited a third lot of 5,000 eggs. Thereafter eggs were put in the machines, regardless of difficulties that were being experienced. While the shutdowns of January 12, 23', 24 and 25, were undoubtedly caused by natural agencies over which the power company had no control, and could not successfully guard against, the interruption of January 19 would not have occurred if appropriate fuses had been used in the coal company\u2019s switch. The power company depended upon the coal company\u2019s electrician for maintenance of a system so vitally tied in with the Russellville-Dardanelle lines that use of copper wire as substitute for fuses caused a short-circuit and consequent interruption for five hours. There appears to have been' a want of inspection by the power company, or a delegation of authority carelessly exercised, or an improper installation where the mine company\u2019s wires tapped the power company\u2019s service. In either case liability would attach.\nInclusive of January 19, 25,000 eggs had been placed in appellee\u2019s machines. To what extent five hours without heat affected them, or how badly these eggs and an additional 5,000 placed January 21 were damaged by the interruptions of January 23, 24, and 25, is obscure. The next \u201csetting\u201d was January 26, one day after protracted trouble had been experienced on account of sleet storms.\nApportionment of damages to 30,000 eggs as a result of interruptions due to negligence January 19 when either 20,000 or 25,000 were in the machines, and to acts of God January 23, 24, and 25, is impossible. It is difficult to unscramble an egg; nor has anyone suggested a practical way to place Humpty-Dumpty back on the wall in an unimpaired condition.\nIf we disregard the thirty-minute interruption of February 2 as perhaps of little consequence, the next obstacle confronting the power company is satisfactory explanation of why three hours and fifteen minutes were required to repair a broken insulator at Morrilton February 9, or why a fuse was blown February 21, with resulting interruption of an hour and forty-five minutes. Accepting as true the testimony that trouble developed in the substation at Danville February 24 and that a lightning-arrester was burned from the distribution system, it is not shown, except by inference, that lightning damaged the arrester; or, if such were the facts, the power company did not discharge the burden placed upon it of showing that the equipment had been properly installed.\nMabry\u2019s testimony is that when one of three transformers was damaged at Danville February 24, two others were connected and made to carry the load. The following morning they were overheating; therefore service was discontinued until a third transformer could be installed. The jury may have thought that if the two transformers carried the burden placed upon them during the night, they were not insufficient for daytime service when most of the lights were off and a much smaller load was in prospect. Also, the jury may have believed, in the absence of convincing testimony to the contrary, that cumulative periods of four hours March 3 to repair poles could have been lessened if temporary wires had been strung in order to prevent long disconnections.\nThe overlapping periods during which power was not available, considered in relation to the intervals from January 5 to March 9 when eggs were placed in machines; the percentage of damage caused by interruptions attributable to negligence in comparison to loss resulting frohi the acts of Grod \u2014 these are matters impossible of accurate computation. They are baffling alike to lay-witness, expert, juror, and judge.\nOf one thing we are certain: there was substantial evidence that some of the trouble complained of was caused by external forces not within the power company\u2019s control, and in respect of which there is no showing the company was negligent in not anticipating it might occur.\nThe judgment can not stand for an amount in excess \u2022 of $1,999.50, or one-half. If appellee will enter a remittitur of $1,999.50 within fifteen days, the judgment will be affirmed; otherwise the cause will be remanded for a new trial.\nJanuary 5, 7, 12, 14, 19, 21, 26, 28; February 2, 4, 9, 11, 16, 18, 23, 25; March 2, 4 and 9, ninety-five thousand eggs were placed in the machines, 5,000 on each date. They were withdrawn January 26, 28; February 2, 4, 9, 11, 16, 18, 23, 25. March 2, 4, 9, 11, 16, 18, 23, 25 and 30.\nPeriods of service interruption alleged in the complaint were: January 12, 1937, two hours forty minutes; January 19, five hours; January 23, two hours; January 24, twenty-four hours; January 25, eight hours; February 2, thirty minutes; February 9, three hours fifteen minutes; February 21, one hour forty-five minutes; February 24, two hours; March 3, four hours; March 15, two hours.\n\u201cReferring to our conversation last night regarding the interruption of our service for approximately 30 minutes which I understand inconvenienced and endangered the hatching of eggs in your incubator. You were also interrupted two or three days during the recent sleet storm, and I would suggest that you put in some other form of heating as an emergency. I understand that there are several types of incubator heating for emergency use. We cannot any more guarantee continuous service than you can guarantee the hatching of 1,000 chicks from 1,000 eggs. Ninety per cent of our interruptions are caused by the elements over which we have no control. We make every effort to give the best of service possible, and always get our men out during any kind of weather to repair the lines and renew service. Our interruption last night was caused by lightning striking an insulator on our high line below Pottsville.\u201d\nPatterson gave his profession as \u201crailroading\u201d' \u2014 a section foreman.\n[Headline]: \u201cFreezing Rain Does Much Local Damage.\u201d The text is: \u201cThe beautiful shade trees of Dardanelle, a feature of the city that is noted and admired by every visitor, suffered heavy damage last Friday, Saturday and Sunday, by the freezing rain and sleet storm that encrusted every branch and twig with a heavy coating of ice. Weighed beyond the breaking point, few trees escaped the loss of at least several limbs, and some were entirely destroyed. Sunday afternoon most of the streets of the city were blocked to traffic by dense masses of ice-covered trees.\u201d\nThe number would be 20,000 if power was shut off January 19 before 5,000 eggs were placed that day, or 25,000 if the shut-down occurred after the deposits had been made. Mrs. Abboud\u2019s testimony does not clarify this point.",
        "type": "majority",
        "author": "Grieein Smith, C. J."
      }
    ],
    "attorneys": [
      "House, Moses d Holmes; Hays d Wait and J. M. Smallwood, for appellant.",
      "Ferguson d Madole; Gaviness d George and Gaudle d White, for appellee."
    ],
    "corrections": "",
    "head_matter": "Arkansas Power & Light Company v. Abboud.\n4-6779\n164 S. W. 2d 1000\nOpinion delivered October 19, 1942.\nHouse, Moses d Holmes; Hays d Wait and J. M. Smallwood, for appellant.\nFerguson d Madole; Gaviness d George and Gaudle d White, for appellee."
  },
  "file_name": "0808-01",
  "first_page_order": 826,
  "last_page_order": 836
}