Abboud v. Arkansas Power & Light Co.

Humphreys, J.

This suit was brought by appellant against appellee in the circuit court of Yell county, Dan-ville district, to recover damages in the sum of $5,320 on account of an alleged breach of contract on the part of appellee “to furnish efficient and adequate electric service to efficiently operate a commercial chicken hatching plant in Danville, Arkansas,” of the kind and type installed and equipped by her. In her complaint appellant alleged that she installed and equipped the plant on the advice of B. C. Fowles, manager of appellee corporation, and his assurance that appellee corporation would furnish efficient and adequate electric service to efficiently operate the hatchery during the ensuing hatching season; that after the plant was installed and ready for operation appellee, through its said manager, ordered and directed the said equipment or plant be connected with the distribution system of appellee and supervised the manner in which the connection was made and thereafter began to furnish electrical current for the operation of the machines and equipment, at the agreed price of three cents per kilowatt hour; that in reliance upon the contract appellant filled and emptied the hatching machines with eggs costing her four cents each in the total number of 95,000 at a total cost of $3,800 during the season beginning January 7, 1937, and ending March 9, 1937; that had the electrical current furnished been adequate, efficient and sufficient she would have made a net profit of $1,400 during the season; that notwithstanding the aforesaid contract and agreement appellee corporation neglected, failed and refused to furnish adequate, efficient and sufficient electrical service, setting out the dates and the hours appellee failed to furnish sufficient current and alleging that as a direct and proximate result of the failure and refusal of the appellee corporation to comply with the terms of its contract and agreement all the eggs were spoiled and became valueless, and that no commercial chicks were produced therefrom and that she sustained $3,800 damage on account of the purchase of eggs, an additional sum of $120 that she paid appellee corporation for service during the period of incubation, and that she lost $1,400 in profits that she would not have lost had the current and service contracted for been furnished, and that she sustained a total aggregate damage in the sum of $5,320; that all of the damage was the direct and proximate result, failure and refusal of appellee corporation to comply with the contract as aforesaid.

Appellee corporation filed an answer denying each and every material allegation set forth in the complaint of appellant except the allegations specifically admitted. They consisted of allegations that appellant was engaged in the operation of a commercial hatchery and that appellee was a domestic corporation and so forth and so on. In the answer it was denied that B. C. Powles was general agent or that he had authority, actual or apparent, to enter into the contract alleged or that he induced appellant to install the character of machinery and kind of plant alleged. It was denied that appellant had sustained any damages on account of appellee’s failure to furnish efficient and adequate electrical service to efficiently operate the equipment for the ensuing hatching season.

' The cause was submitted and at the conclusion of appellant’s testimony the court instructed the following verdict:

“Gentlemen of the jury, after hearing all the evidence being introduced by the plaintiff, and the law presented to me by the apt representation on both sides, the court has come to the conclusion that the plaintiff would have to show that Mr. Powles, as district manager of the Arkansas Power & Light Company, had the authority from the company to enter into a contract to furnish continuous, uninterrupted service, and it being a special contract it would devolve upon her to show that he had that authority, and she has failed to do that. I have prepared the verdict, ‘We, the jury,'find for the defendant.’ One of you can sign that verdict as foreman.”

A motion for a new trial was filed and overruled over appellant’s objection and a judgment was rendered dismissing her complaint, from which is this appeal.

Appellant introduced testimony tending to sustain all of the allegations of her complaint. So in taking the case away from the jury and instructing a verdict the court decided questions of fact according to his interpretation of the allegations of the complaint and the evidence in the case. In other words, he found that B. C. Fowles was the manager of the company and that he made a contract with appellant to furnish continuous, uninterrupted service to - operate her hatchery, hut declared as a matter of law that notwithstanding the fact that B. C. Fowles was the general agent of appellee he had no right to make a contract and bind appellee that Was impossible of performance. In other words, it.is argued that he could not bind appellee upon a contract to furnish uninterrupted service where the failure to do so was caused by the acts of God, or the public enemy or interruptions in service caused by unforeseen accidents, fires, explosions, strikes, riots, governmental interference, order of any court or judge granted in any bona fide adverse legal proceedings or action, or any order of any commission or tribunal having jurisdiction, in the premises, or any other act or thing reasonably beyond appellee’s control, or for damages occasioned by interruptions necessary to make repairs or changes in appellee’s generating, transmission or other equipment.

Appellant argues that the evidence could only bind appellee on contracts usual in the line of business in which appellee was engaged. We do not think"that a fair interpretation of the evidence or the provisions of the contract was to require appellee to pay damages to appellant in any event, or to express it differently, that the contract entered into bound appellee to pay appellant damages if it failed to furnish sufficient electrical energy to operate the plant through an act of God or from acts or actions over which appellee had no control. We think a fair interpretation of the testimony is that the purpose and intention of the contract was to require appellee to furnish efficient and sufficient electrica.1 energy in the exercise of ordinary care on its part. At least, taking the allegations of the complaint together with the evidence ■introduced, the jury would'have been warranted in finding that appellee was only bound on the contract in case it was guilty of negligence in furnishing electrical power. Of course, appellee could not contract against its own negligence in failing to furnish electrical power. One of the issues of fact, to be determined from the allegations in the complaint and from the evidence, was the terms of the agreement and this issue along with the other issues of fact should have been submitted to the .jury by the court.

The court erred in taking the issues of fact away from the jury and deciding them or part of them himself.

On accoupt of the error indicated, the judgment is reversed, and the cause is remanded for a new trial.

Gtrieein Smith, C. J., and Holt, J., concur. McHaney, J., dissents.