Arkansas Power & Light Co. v. Hoover , 182 Ark. 1065 ( 1931 )

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 cap 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 support of the father was shown. The most that was proved was that the soon occasionally gave the father small gifts of wearing apparel, a few gifts of money not to exceed five dollars and $50 at one time to apply on the purchase price of an automobile. This seems to me to be insufficient to indicate with any reasonable degree of certainty that the son would, in the future, contribute any substantial amount to the support of the father.

The witnesses whose testimony tended to exonerate 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 too permit them to be made to the jury. These decisions, none of which have been overruled or their authority unpaired, call for a reversal of this case.

I therefore hold that for the reasons stated 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 (1152, C. M. Digest) does provide that "Any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporations so keeps or maintains such office or place of business, * * *," and that service of process upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporation." But I submit that, under the facts stated in the majority opinion, the defendant did not have, keep or maintain a branch office or other place of business in the village of Waterloo, within the meaning of the statute from which I have quoted. Every one recognized Terry Dairy Co. v. Parker,144 Ark. 401, 223 S.W. 6, as a border line case on the subject. Indeed, there was a vigorous dissenting opinion in that case as to the sufficiency of the service, but there were important facts present in that case which are absent here. It was there said: "The facts of the present case show that the appellant was maintaining at the town of Hazen a place where it was conducting a well-defined fine of its business. The appellant, as its name implies, is engaged in a business in which a supply of milk is indispensable. For its convenience, it had a building on the railroad equipped with machinery, which it designated as its plant No. 3. This building had in it a desk which the agent in charge used in making daily reports of the business. The agent was employed on a salary. The building was equipped with the necessary machinery for cooling the milk, and the business of the company was that of obtaining from the farmers in that locality a supply of milk to be shipped to its principal place of business at Little Rock. The building was duly equipped and appointed, and the agent was supplied with the necessary material for successfully conducting that part of appellant's business."

How, 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, made collections for and remittances to the appellant power company, for which he was paid $10 per month. Nothing more was contended or is stated in the majority opinion, and this was done in a building which neither Atkins nor appellant power company owned or controlled, and, certainly, these simple transactions would not convert the Guthrie drug store into "a branch office or other place of business" of the appellant power company.

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.