text:
    Inc. Town of Emerson v. Ark. Publ. Serv. Comm.
    5-1098
    295 S. W. 2d 778
    Opinion delivered December 3, 1956.

      McKay, McKay & Anderson and Lasley & Lovett, for appellant.

      John B. Thompson, II. W. McMillan, and Chas. C. Wine, for appellee.
   Minor W. Millwee, Associate Justice.

This is an appeal from a judgment of the Pulaski Circuit Court dismissing a petition to review an order of the Arkansas Public Service Commission, hereinafter called “Commission.” Appellants, who were the petitioners and intervenors below, are Union Telephone Company and the town of Emerson, Arkansas, and will he respectively referred to as “Union” and “Emerson.”

Ray Bradley owned and operated the Emerson Telephone Exchange under a franchise from Emerson and an indeterminate permit from the Commission on June 11,1951, when he applied to the Commission for a certificate of convenience and necessity to furnish telephone service to a “rural area” in Columbia County which embraced Emersdn and adjacent rural territory including the smaller rural communities of Atlanta, Mt. Pisgah and Walkerville.

Southwest Arkansas Telephone Cooperative, Inc., hereinafter called “Cooperative” is a non-profit telephone corporation organized under Act 51 of 1951 (Ark. Stats. Secs. 77-1601 to 77-Í639) for the purpose of engaging in and furnishing telephone service to rural areas. On July 22, 1953, Cooperative secured an option from Mrs. Ray Bradley and T. H. Bradley, owners of the Emerson Telephone Exchange, to purchase said exchange and telephone properties for $7,000.

On February 18, 1954 the Commission approved Bradley’s application and entered an order issuing a certificate of convenience and necessity to service the rural area in question. On June 7, 1954, the town council of Emerson, which had a population of 523, passed an ordinance granting a franchise to Cooperative to eonstruct and maintain a telephone exchange in the town. Oh July 20, 1954, Cooperative exercised its option to purchase from the Bradley’s subject to approval of the Commission. On November 11, 1954 the Emerson council repealed the ordinance passed June 7, 1954, because Cooperative had not filed written acceptance of the franchise within 90 days.

On December 6, 1954, the Bradleys and Cooperative filed their joint application with the Commission requesting approval of the sale of the Emerson Telephone Company to Cooperative together with all rights granted the Bradley’s under their certificate of convenience and necessity. This was done after a detailed engineering-study and economic feasibility survey of the area in question had been made. On March 2, 1955, Union filed with the Commission its petition to reopen and set aside the order for allotment of the area to Bradley issued on February 18, 1954, and for the reallocation of said area to Union instead. On March 2, 1955, Union also filed its petition to intervene in the joint application of Cooperative and the Bradleys and requested its dismissal on the ground that it was contrary to the public interest. On April 12, 1955, Emerson filed an intervention joining in the request of Union. The various applications, petitions and interventions were consolidated for a hearing before the Commission which began May 10, 1955, and lasted for several days.

On June 16, 1955, the Commission entered an order approving the joint application of Cooperative and the Bradleys and denying the petition and application of Union. In approving- allocation of the area in question to Cooperative as being in the public interest and granting it a certificate of convenience and necessity to construct and maintain telephone facilities in the area, the Commission made extensive findings. It found that Union did not propose to render telephone service to the entire area in question as proposed by Cooperative; that the agreed sale price of $7,000 was considerably more than the actual value of the properties involved; that the total price should not be reflected in the rate base of Cooperative which would be required to enter $3,500 thereof in a surplus account, and that the balance over and above the value of the properties remaining in service after reconstruction should be amortized over a period of 10 years by charges to operations; that the fee of $50.00 which Cooperative proposed to charge new members is unreasonably high and a uniform fee of $10.00 is reasonable and adequate for all members; and that it is in the public interest to allow Cooperative to issue membership certificates, capital stock and evidences of indebtedness necessary to secure a loan of $294,000 by the United States through the Rural Electrification Administration for construction of the facilities.

The evidence also discloses that for the past several years the properties of the Emerson Telephone Company have deteriorated and that the service is poor. Service to some former patrons in the area adjacent to Emerson had been discontinued and many others in that area desired service. Citizens in and outside of Emerson held several mass meetings at which prospective telephone patrons “signed up” for membership in Cooperative and offered to subscribe for its stock. At one meeting 114 signed and paid a $10.00 deposit on the membership fee requested by Cooperative. The citizens of Emerson had become impatient for improved service in the Fall of 1954 when Union first became interested in the project and a mass meeting was held in Emerson attended by about 75 people at which representatives of Union and Cooperative spoke and there was a vote taken with 34 voting in favor of Union and 10 for Cooperative. Shortly thereafter the town council of Emerson granted a franchise to Union subject to approval of the Commission.

Union is an established company and operates exchanges in several towns 'in three counties with about one-third of its 2,150 phones in rural territory. Its schedule of proposed rates was slightly lower than those proposed by Cooperative but the latter’s coverage of the less populous rural territory adjacent to Emerson was substantially more complete. Union’s president testified that a considerable portion of this area could not be served upon any favorable or economical basis. Both applicants intended to reconstruct the entire facilities in Emerson and the adjacent area under contracts let upon competitive bidding and on borrowed capital which was available to Cooperative from the REA at a substantially lower rate of interest than Union planned to pay the banks. While there was some evidence that the existing facilities of the Emerson exchange were worthless and useless, the president of Union placed a net value of $2,517 on the properties and there was other evidence that a part of the equipment could be used in reconstruction and expansion of the facilities.

Cooperative owns and operates four exchanges in Miller County near the area in question under authority granted by the Commission in 1952. While its financial statement of December 31, 1954, showed an excess of $11,000 in liabilities over assets, it earned $644 after expenses during the first quarter of 1955 and prospects for future earnings were considered favorable. Union’s net earnings were greater and its investment per station was considerably less than that anticipated by Cooperative. Union estimated it would have 180 telephone customers in the area it proposed to serve in five years after cutover to dial service while Cooperative estimated it would have 320 customers in the broader area it proposed to serve at that time.

Appellants filed their appeal or petition to review the Commission order in Pulaski Circuit Court pursuant to Ark. Stats. Sec. 73-233. The instant appeal is from the circuit court judgment of May 22, 1956, dismissing appellants’ petition and finding that the Commission had regularly pursued its authority; and that no constitutional rights of the appellants had been violated.

It is well settled by our decisions that the Commission is clothed with broad legislative and administrative powers and that a review of its findings and orders by either the circuit court or this court, on appeal, is considerably limited in its extent. Ark. Stats., Sec. 73-233 (d) provides that such review shall not be extended further than to determine whether the Commission has regularly pursued its authority, including a determination of whether the order under review violated any right of the complainant under the U. S. or State Constitutions. However this does not mean that the courts cannot inquire heyond mere formality when other provisions of the statute are considered along with Sec. 73-233, supra. In this connection we have repeatedly held that if the Commission’s order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of courts to permit it to stand, even though the courts might disagree with the wisdom of the order. Department of Public Utilities v. Arkansas-Louisiana Gas Co., 200 Ark. 983, 142 S. W. 2d 213; City of Fort Smith v. Southwestern Dell Telephone Co., 220 Ark. 70, 247 S. W. 2d 474; Arkansas Power & Light Co. v. Arkansas Public Service Commission, 226 Ark. 225, 289 S. W. 2d 668.

While appellants do not contend the order under review violated their constitutional rights, they insist that it is unreasonable, arbitrary and illegal; and that the findings set out therein are not supported by any evidence. Appellants say the Commission exceeded its statutory authority in authorizing Cooperative to issue notes and other evidences of indebtedness; that under the undisputed evidence Cooperative is hopelessly insolvent; and that the order is particularly arbitrary as applied to the people of Emerson proper because they will have to wait longer for improved service and pay higher rates than would be the case if the application of Union had been approved. .

The principal purpose of the Legislature in the enactment of Act 51, of 1951 is perhaps best expressed in the emergency clause (See. 41) which reads: “It is found that there are many rural areas, as herein defined, in the State of Arkansas without local telephone service; that the Federal Government has made provision for the financing of cooperative non-profit corporations for the purpose of furnishing telephone service to said areas; that there is an urgent demand from those living in said areas for telephone service; that there is no provision for the organizing of such corporations for said purpose; and that this act is necessary for the preservation of the public peace, health, and safety, an emergency is therefore declared, and this Act shall take effect and be in force from and after its passage. ’ ’

Regardless of our own appraisal of the wisdom of the Commission’s order, we conclude that it is supported by substantial evidence and that it is not based on arbitrary or illegal action. It is understandable why the inhabitants of Emerson proper now prefer the services of Union and if their interests alone were at stake we might readily agree that the Commission acted both unwisely and arbitrarily. It is also easy to understand why Union can offer more attractive rates by declining to serve a substantial portion of the less populous rural territory, adjacent to Emerson. The problem of the Commission was to determine the best interests of the people of the whole area in question. Viewed from that standpoint its findings and conclusions are supported by substantial evidence. The judgment of the circuit court is accordingly affirmed.

       By Ark. Stats. Sec. 77-1602 (9) “Bural Area” means any area located outside the boundaries of any town, city or village having a population in excess of 2500.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Smith v. Smith.
    5-1070
    295 S. W. 2d 790
    Opinion delivered December 3, 1956.

      O. W. Pete Wiggins, for appellant.

      Quinn Glover and Wayne Foster, for appellee.
   George Rose Smith, J.

In this case the appellant, by her complaint, and the appellee, by his cross-complaint, sought a divorce. The chancellor entered a decree which dissolved the marriage without specifying which party was at fault. It was further found that Smith had expended more than $3,000 in his wife’s business, that this advance was not a gift, and that after offsetting all deductions he was entitled to judgment for :$1,800. The plaintiff does not ask for alimony, but she .appeals from that part of the decree relating to the property.

The parties were married on November 27, 1954, which was eighteen days after they first met. Smith was then living in Memphis and had engaged in a number of occupations at one time or another. Mrs. Smith was an established businesswoman, owning and operating a retail lumber company in North Little Rock, where the couple made their home during their brief married life. Smith had had a week or two of experience in an ornamental iron shop in Memphis, and he suggested that such a shop be built upon the land which Mrs. Smith owned in connection with her lumber company. The appellant agreed to the proposal upon the' understanding that her husband would be able to finance the construction.

The weight of the evidence indicates that Smith contributed a total of $3,000 to the building and equipment of the iron shop, which ultimately cost more than $6,000. Purchases of materials and equipment in excess of Smith’s contribution were made on Mrs. Smith’s credit, and she was still heavily indebted for such items at the time of the trial. The shop was completed in December, 1954, and had been in operation for only a month or six weeks when the parties separated about the middle of February, 1955. Smith returned to Memphis and was living there when the case was tried.

If the question were that of stating an account of the parties’ various receipts and disbursements, it might be hard to say whether Smith profited or lost by his marriage to the appellant. He undoubtedly advanced $3,000 toward the construction of the iron shop. He may have invested an additional $700 in the venture, and he gave his wife a diamond ring worth from $200 to $650. On the other hand, Smith received his hoard and room during the time the couple lived together, and his father also lived in the home for about six weeks. Smith did at most two or three days of work during the period of the marriage; his father declined the appellant’s offer of employment. Smith received as a gift from his wife a diamond stickpin which her uncontradicted testimony indicates to be worth about $2,000. He also sent to Memphis about $300 worth of material from the lumber company, and he may have used a $1,000 bank loan, which Mrs. Smith eventually repaid, for the payment of debts that he owed at the time of the marriage.

The issue, however, is not that of reimbursing Smith for any pecuniary loss he may have suffered; for a husband is. under the legal duty of supporting his wife. His advancements for the improvement of her property are presumed to be gifts, and that presumption can be overcome only by clear and convincing evidence. Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212; James v. James, 215 Ark. 509, 221 S. W. 2d 766. Here the proof falls decidedly short of rebutting the presumption. The appellee does riot suggest in his testimony that his contribution was intended to be a loan or to create a partnership in the iron shop; it was just “a husband and wife proposition.” This meager testimony is insufficient to overcome the powerful presumption that the transaction constituted a gift.

With respect to the property settlement the decree is reversed and the appellee’s cross-complaint dismissed.


author: Paul Ward, Associate Justice.

text:
    Tri-County Drainage Dist. v. Morrison. East St. Francis Drainage District No. 1 v. Tri-County Drainage District.
    5-930; 5-931
    295 S. W. 2d 781
    Opinion delivered December 3, 1956.

      No. 5-930. Henry S. Wilson, Bieves & Smith, for appellant;

      Norton ■& Norton, E. J. Butler, and Mann & Mc-Culloch, for appellees.
    No. 5-931. Norton & Norton, E. J. Butler <$> Mann & McCulloch, for appellants;

      Henry S. Wilson and Bieves S Smith, for appellees.
   Paul Ward, Associate Justice.

These two cases were consolidated for trial in the court below, and they were consolidated in this court for the purposes of briefing and presentation, although there is only a slight connection between the two of them. In this opinion we find it more convenient to discuss each case separately.

CASE NO. 930

In order to understand the issue presented by this appeal it is necessary to make a brief background statement. Appellant, Tri-County Drainage District, was organized in 1914 embracing lands in Crittenden County, Cross County, and St. Francis County. Tbe drainage construction was completed, about 1916, and all bonded indebtedness was retired several years ago. In 1947 tbe Legislature passed Act 371, sometimes referred to as the Separation Act. Generally speaking this Act permitted a county in the original district to withdraw therefrom and exist as a separate district. Section 1 of said Act 371 (Ark. Stats. § 21-577) provided for the separation of a county from the original district when the original district had “no outstanding unpaid bonds or other evidences of indebtedness.” Section 3 of said Act 371 (Ark. Stats. § 21-579) sets forth how this separation may be effected. In this section one of the showings that must be made by the county seeking to withdraw or separate is “that all obligations of the district have been paid in full.” (emphasis supplied.) '

A few years ago St. Francis County withdrew from the original Tri-County Drainage District under the provisions of said Act 371, and now exists as East St. Francis District No. 1.

This litigation was instigated by appellees who were residents of Crittenden County and landowners of that county in the original district, who sought to withdraw from the original district in accordance with said Act 371.

It is not disputed that the original district has no outstanding unpaid bonds or any other evidences of indebtedness, except that contended for by appellants as hereafter set out.

After a hearing in the Circuit Court of Crittenden County, the presiding judge granted the separation asked for, and appellants have appealed.

It is the contention of appellants that appellees were not entitled to invoke the. provisions of said Act 371 because they were unable to make the showing required by Section 3 thereof as heretofore set out. This contention on the part of appellants is based on the following situation: At the time the present litigation was instituted there was already pending before the same court the litigation involved in Case No. 931. In the latter case the testimony shows that the commissioners of the original district had attempted to obligate the district to pay its attorney a fee of $3,500 and its engineer a fee of $3,500. The conclusion reached by appellants, therefore, is that the original district has “obligations” which have not been paid in full.

We are not in agreement with the above contention made by appellants. We note, first, that appellees take the position that the two items of “indebtedness” mentioned above are not established claims against the district, but that said items are merely a contingent claim pending on the outcome of the litigation in Case No. 931. We make no effort to resolve this dispute between appellants and appellees, but base our conclusion herein on another ground.

We think Section 1 of Act 371 of 1947 (Ark. Stats. § 21-577) is controlling in this case relative to the kind of indebtedness from which the district must be free before Crittenden County (in this instance) will be permitted to separate. The section referred to above sets forth the condition relative to indebtedness under which a county is entitled to be separated from the original district. The condition there stated is that the original district shall “have no outstanding unpaid bonds or other evidences of indebtedness . . .” Section 3 of Act 371 of 1947 (Ark. Stats. § 21-579) sets forth the procedure for effecting a separation. This section, among other things, provides that the petitioners must show “that all obligations of the district have been paid in full . . .” It is clear to us that this section must be read and construed in connection with Section 1 of said Act 371, and that it refers to the kind of indebtedness therein mentioned. It further appears that the language used in said Section 1 was not meant to include the kind of indebtedness relied on here by appellants, to-wit: The attorney and engineering fees. It is obvious that such indebtedness or fees cannot be classified as “outstanding unpaid bonds,” nor does it appear logical to us that they should be classified as ‘ ‘ evidences of indebtedness. ’ ’ The adoption of the appellants’ contention would practically amount to a nullification of Act 371 of 1947, because it would always be easy for the original district, if it so desired, to keep itself at all times obligated for some small unpaid bill. It is not reasonable to suppose that the Legislature, after setting up the separation provisions contained in said Act 371, meant to leave open such an easy method of defeating its purposes.

It is our conclusion, therefore, that the trial court was correct in permitting Crittenden County to separate from the original district, and its action in so doing is affirmed.

CASE NO. 931

This litigation began on' February 22, 1955 when the commissioners of Tri-County Drainage District filed a petition, pursuant to Ark. Stats. § 21-533 and § 21-581, asking for a levy of taxes against the lands in the three counties comprising the original district for the purpose of doing certain work on the drainage system. Preparatory to the filing of this suit the commissioners hired an engineer, Mr. C. H. Bond, to prepare a set of plans detailing the work to be done. The litigation was resisted by the East St. Francis'District No. 1 and certain landowners in those portions of the district which lie in St. Francis and Crittenden Counties. The trial court, after hearing much testimony relative to the nature of the work proposed, deleted large portions of the engineer’s plans and approved the levy of taxes as to the remaining portion.

The St. Francis District and the said landowners have appealed from the judgment of the trial court and the Tri-County District has cross-appealed, contending that the original plans of the engineer’s should have been approved by the court.

A brief statement of facts presenting the background to this litigation will help to understand the issues presented on this appeal. Tri-County Drainage District (hereafter referred to as Tri-County) was organized in 1914 under the provisions of Act 279 of 1909 (Ark. Stats. § 21-501, et seq.) comprised of lands in Crittenden, Cross and St. Francis Counties. The drainage system, completed in 1916 at a cost of approximately $800,000, is quite extensive, consisting of so-called main canals together with numerous laterals, and drains in a southerly direction from Crittenden County through Cross and St. Francis Counties, and empties into the St. Francis River. A few years ago the landowners in that portion of the original district lying in St. Francis County, as mentioned previously, secured a separation from the district.

A careful reading of Act 279 of 1909 under which Tri-County was organized and of Act 371 of 1947 reveals, generally speaking, that after a county is separated from the original district the portion of the original district lying in the separated county can elect its own commissioners and function as a separate and independent district for the purpose of maintaining the ditches in that county, etc., and that thereafter the original district has no power to impose assessments on the lands in the separated portion except that power which it retains or is granted under a provision contained in Section 5 of said Act 371 (Ark. Stats. § 21-581). This provision reads as follows: “. . . the Circuit Court in which the original district was organized shall have authority to cause to be levied and collected a tax on all the lands of the original district for the purpose of paying the expenses incident to the cleaning out (but not for the purpose of extending, widening or deepening) existing ditches so as to provide an adequate outlet for the entire drainage system of the original district.” (emphasis supplied.) It is admitted that the original district was organized in the Circuit Court of Crittenden County. Again, generally speaking, much of the dispute in this litigation revolves around the correct interpretation of the above quoted passage.

Appellants ably and earnestly insist that the decision of the trial court levying an assessment on- all the lands in the original district should be reversed for five different reasons, to-wit: 1. The notice of hearing was defective; 2. The project is not authorized by Ark. Stats. § 21-533; 3. The order of the trial court violates Act 371 of 1917 (Ark. Stats. § 21-577, et seg.); 1. The project is not feasible, and; 5. The burden of proof has not been met by the petitioners.

1. Notice. Ark. Stats. § 21-533 pursuant to which the petition herein was filed, provides: “Upon the filing of such petition, notice shall be published by the clerk for two (2) weeks in a newspaper published in each of the counties in which the district embraces land, . . . ” It is not disputed in this case that a notice was published for the time provided by said statute, setting forth the date on which “any property owner in the original TriCounty Drainage District seeking to resist such additional levies may appear and urge his objections thereto.” Appellants’ objection to this notice is that it does not give the description of each parcel of land in the district or describe the boundaries of the district. It is our opinion that this objection is not well taken. We are dealing here with a district that has already been organized and not with the creation of a new district. Section 21-533 above mentioned is a part of the Act under which the original district was organized, and the first part of this section specifically states that “the district shall not cease to exist upon the completion- of the drainage system but shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstruction, and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district.” It must be noted of course that appellees contend that the court’s order merely goes to “keeping the ditches clear from obstruction” and cleaning them out, and not to extending or widening, etc. If appellees are correct in this view, then we can see no objection in the form of notice used in this case. Upholding their contention that the notice was not good appellants cite Mahan v. Wilson, 169 Ark. 177, 273 S. W. 383; Crane v. Siloam Springs, 67 Ark. 30, 55 S. W. 955, and; Cox v. Drainage District No. 27 of Craighead County, 208 Ark. 755, 187 S. W. 2d 877. The first two cited cases dealt with the formation of new districts, and the last cited case dealt with the digging of new and additional ditches and are therefore not controlling-in this case. It was said in the Crane case that “It is important that this notice should be given in the manner and within the time prescribed by the statute; . . . ” We think that has been done in this case.

2. It is next contended by appellants that the work sought to be done by the petitioners is not authorized by Ark. Stats. § 21-533. It seems that appellants must admit, because it is so stated in said section, that the original district is authorized to levy assessments for the purpose of preserving the drainage system and keeping the ditches clear from obstruction. They contend however that the work contemplated by the commissioners herein (as approved by the court) amounts to additional work which is not authorized by said section, and therefore governed by Ark. Stats. § 21-520 which requires a petition filed by a majority in numbers, acreage and value of the owners of the land within the district. Appellants rely on the opinion in the Indian Bayou Drainage District v. Walt, 154 Ark. 335, 232 S. W. 575, where it was held that the commissioners had no right under Section 21-533 to do the proposed work. The work there however was quite different from the work here contemplated, as the language of the court shows. It was said by the court in that case: “The proposed canal which the commissioners now propose to dig is not an extension of the canal originally constructed, nor widening or deepening of ditches that were already completed, but it is in very truth ... a new and independent drainage canal.” (emphasis supplied.) If, therefore, the work approved by the court in this case on the drainage system amounts to. a “new and independent drainage canal, ’ ’ or even (in view of the restrictive language in Act 371 of 1947) such work amounts to more than preserving the drainage system and cleaning out the ditches the trial court should .be reversed, but if the contemplated work as approved by the court amounts only to preserving the drainage system and cleaning out the ditches we must hold to the contrary. As stated before the extent of the work authorized is one of the principal points of the controversy and is to be considered later.

3. The argument that the order of the trial court violates Act 371 of 1947, presented by East St. Francis District No. 1, rests on two points, one of which, at least, is difficult to resolve with complete satisfaction. These points are: (a) Whatever power the Circuit Court of Crittenden County has to levy a tax upon the lands in the East St. Francis District No. 1 can be exercised only upon petition by the commissioners of that district, and not upon a petition by the commissioners of the original district, and; (b) the work authorized by the trial court in this case extends further than cleaning out ditches “so as to provide an adequate outlet for the entire drainage system.”

(a) Assuming for the sake of argument, at this point, that the work authorized by the trial court amounts only to cleaning out and preserving the proper ditches, then it appears clear to us that the commissioners of the original district are' the proper parties to instigate this litigation. That the commissioners of a drainage district, such as Tri-County Drainage District, are the proper and legally authorized parties to look after its affairs and institute and control litigation of the district admits of no argument. Section 22 of Act 279 of 1909 (Art. Stats. § 21-533) specifically provides that “the District shall not cease to exist upon the completion of its drainage system, but shall continue to exist . . .” for certain purposes. This existence of the District was not terminated by Act 371 of 1917. On the other hand Section 5 of said Act 371 (Ark. Stats. § 21-581) specifically provides “that the Circuit Court in which the original district was organized (the Circuit Court of Crittenden County) shall have authority to cause to be levied and collected a tax on all the lands of the original district . . .” for certain purposes. It is true that the first portion of Section 5 of said Act 371 provides that after the separation of a county the power of the original district to levy a tax on the land in the county so separated for the purposes provided in Ark. Stats. § 21-533 shall cease, yet the same section later qualifies this in the manner stated above. It makes no difference therefore whether the power granted to the original district and to the Circuit Court of Crittenden County be treated as a reservation of power in the original district or whether its a power granted under the provisions in Section 5 of said Act 371. If the commissioners of East St. Francis District No. 1 were the only ones who could invoke the jurisdiction of the Circuit Court of Crittenden County it would lead to a novel situation. Section 5 of Act 371 gives the Circuit Court of Crittenden County the authority to levy a tax not only on the lands in St. Francis County but on the lands in Cross and Crittenden Counties, and it is unreasonable to believe that the Legislature meant to give the commissioners in the first mentioned county control over the affairs of the last mentioned counties. If the occasion arose where work needed to be done in all three of the counties then, under appellants’ contention, St. Francis County could prevent it by merely refusing to act. It is true, of course, if the St. Francis District desired to levy a tax on its own landowners, its own commissioners could properly take the initiative. It is onr conclusion therefore that the commissioners of the original district were the proper parties to instigate this litigation.

(b) The next contention by appellants, that the work authorized by the trial court extends further than cleaning out ditches so as to provide an adequate outlet for the entire drainage system, presents the principal question on this appeal, and, as stated above, it is a difficult one to resolve. Any authority which the original district or the Circuit Court of Crittenden County has to levy a tax on the lands in St. Francis County which were in the original district is contained in the last portion of Section 5 of said Act 371. That power must have been used by the Circuit Court of Crittenden County (in the language of the statute) “for the purpose of paying the expenses incident to the cleaning out (but not for the purpose of extending, widening or deepening) existing ditches so as to provide an adequate outlet for the entire drainage system of the original district.” So, we agree with appellants that the trial court must be reversed if the work approved by it either (b-1) amounts to more than a “cleaning out process,” as the quoted words are properly interpreted, or (b-2) in including more ditches than necessary to provide an adequate outlet for the entire drainage system of the original district, as that phrase is properly interpreted.

Before attempting to resolve the issues above designated as (b-1) and (b-2), it is pertinent here to view as a whole the intent and purpose of the statutes involved, and particularly Section 21-581 of Ark. Stats. The purpose of any drainage system, of course, is to drain water off land to make it productive. To effect this purpose a drainage system must be kept cleaned out so it will function. In most systems, and particularly the TriCounty District, there are so-called main ditches and lateral ditches, although the distinction may sometimes be hard to make or define. When the Legislature passed Act 371 (Section 5 of which is Ark. Stats. § 21-581) it was cognizant of the extent and nature of the Tri-County District and also of the things we have just mentioned. From this we deduce, generally, that the intent of the Act was to permit a separate county to handle its own affairs insofar as possible, but, realizing the importance to the entire district of the main canals, chose to place the burden of their maintenance on it, and not on the individual counties, leaving to the latter (when separated) the burden of maintaining lateral ditches. The burden placed on Tri-County District therefore was to effectuate the above general purpose, and, in doing so, we cannot believe the Legislature meant to give it an impossible task or to restrict it with technicalities that would defeat the general purpose of the Act. In other words as we view Act 371 it is impracticable of application unless a reasonable latitude of discretion and judgment is allowed the courts and the commissioners of Tri-County District.

(b-1) Viewed in the above light, we have concluded that the work approved by the trial court amounted to no more than a necessary “cleaning out process” of the ditches. The engineer, Bond, admitted that his plans called for a slope of 1-1/2 to 1 for some of the ditches when the Ayers’ plans called for a 1 to 1 slope. However it must be remembered that these ditches were dug nearly 40 years previously and had never been cleaned out. Erosion over this period had changed the banks, and we must assume in the absence of proof to the contrary, that Bond’s plan was the most feasible and economical. "We can see no justification in spending more money merely to restore the original ditches to a mathematical certainty. In this connection we have considered other objections raised by appellants — such as that some ditches are being widened — but they fall in the general classification of the one previously discussed, and none of them justify a reversal, in our opinion.

(b-2) Likewise we conclude that the evidence supports the trial court’s order designating the main ditches to be cleaned out, and, in particular, that it does not include more ditches than necessary “to provide an adequate outlet for the entire drainage system of the original district.”

Although, as heretofore mentioned, the commissioner ’s original plans called for work amounting to approximately $400,000 on a large number of ditches, the trial court approved work amounting to approximately $130,-000 on some 6 or 7 ditches which, for lack of use of a better word, we will call main or principal ditches. The court in its order designated in minute detail the ditches which he approved. It will suffice, we think, to describe these ditches in a general way, and in doing this we refer to one of the exhibits which is a map of the entire drainage system showing all of the ditches in the original district. The first ditch begins at approximately the north side of the district in Blackfish Bayou in Section 2, Township 7 North, Range 5 East and thence in a southerly direction along said Bayou for a distance of approximately 8 miles; the second ditch apparently begins at the south end of Blackfish Bayou and runs southwest and thence west for approximately 3 miles to where it enters into Blackfish Lake; the third ditch leads from the west side of Blackfish Lake at a point approximately 3 miles from the north end thereof and runs west and southwest for a distance of approximately 2 miles; the 4th and 5th ditches appear to be a continuation of the third ditch and continue in a southwesterly direction to the outlet of the drainage system for a distance of several miles; the 6th ditch empties into Black-fish Lake on the east side thereof and extends east approximately one mile and a half to join with other-ditches ; the 7th ditch apparently drains Shell Lake running from the southeast end thereof for a distance of approximately one mile to the south and empties into ditch No. 3 described above, and; there is another ditch which apparently runs due north and south for a distance of approximately a mile and enters into ditch No. 7 on the north side. The numbers which we have given to these ditches were not so numbered in the court’s order.

The difficult question presented therefore is whether the trial court misinterpreted the meaning of the provision in Section 5 of Act 371, copied above, and included more ditches than were authorized by said Act. To. illustrate that there are grounds for different views of the meaning of this section, we note that while appellants feel that too many ditches were included yet appellees, on cross-appeal contend, that not enough ditches were included. In presenting the view that too many ditches were included in the court’s order appellants draw an analogy between the “adequate outlet for the entire drainage system” to the main outlet for the sewer system of a house, stating that the latter “is the final house-sewer or drain from the point where it has received the last water from the minor drains serving the numerous fixtures higher in the system.” From this analogy, we take it, appellants contend that the trial court should have included only the southern-most portion of the main ditch which empties into the St. Francis Eiver, and that it should have excluded all of the above numbered ditches except possibly 4 and 5. This we think is a strained and unreasonable construction of the language of the statute referred to above when we consider the drainage district as a whole and the purpose for which it was constructed. Under the narrow construction it appears clear to us, from a view of the map referred to above, that large portions of the lands in the northern part of the district in Crittenden and Cross Counties would not be properly drained. After giving careful consideration to the language in Section 5 of said Act 371 (Ark. Stats. § 21-581) copied above, we are forced to the conclusion that the Legislature did not intend to limit the original district to cleaning out only the southern-most portion of the main drainage canal, but rather to give the original district full power and authority to clean out all of the (existing) ditches necessary, not only to provide an adequate outlet, but an adequate outlet for the entire drainage system. We are convinced this could not be done under the construction insisted on by appellants.

While the question under consideration has not heretofore been before this court, we did have occasion in the case of Park Corporation of Arkansas v. Tri-County Drainage District, 226 Ark. 357, 290 S. W. 2d 18, to consider said Act 371 in many of its aspects. We said there “that the spirit if not the exact manner of the statute gives Tri-County District the power to levy assessments against appellants’ lands in St. Francis County (along with all of the other lands in the other two counties which are embraced in the district) to pay the expenses of 'cleaning out’ an obstruction or obstructions in the main ditch or canal even though said obstructions are in Cross or Crittenden Counties.” (emphasis supplied). Even though it might be urged that the above was dictum in the cited case, yet our judgment with respect thereto is the same now as it was then.

It is objected that Jeka Slough was not a part of the Ayers’ plan but is in the plans prepared by Mr. Bond. That may be true but we do not find that it was approved by the court. Attention is called to the fact that the court approved the “eleáning out” of Blackfish Bayou, and that it was no part of the original plans. This seems to be true, but we do not think it calls for a reversal of this case. The map referred to above shows that part of the original system drained into the north end of Blackfish Bayou and out at the south end into a main canal. This Bayou was not shown as a part of the original plans because no work was done on it. Nevertheless it appears to be an important link in the drainage system. It is now (after 40 years) full of trees and debris and must be cleaned out before the water from the canal north of it can reach the final outlet.

(4 & 5) We are not convinced by appellants’ argument that the project is not feasible. This again is a matter that must be left largely to the discretion and good judgment of the commissioners and the trial court as above indicated. It may be that when this project is completed the drainage system may not function entirely satisfactorily. Even Mr. Bond admits this possibility. But if that be the case, the fault must lie, not so much with the poor judgment or abuse of power by the courts, as with the inherent difficulties in adjusting the applicable statutes to the existing situation. It appears also that there is a probability that within the next 8 or 10 years the Federal Government will do part of the proposed work at a saving to the landowners, but we are unable to say the court and the commissioners acted unwisely in refusing to wait on that eventually happening.

In view of what we have said heretofore, we deem it unnecessary to discuss further the burden of proof. Appellees have, we think, produced sufficient evidence to sustain the action of the trial court, and it is hereby affirmed.

In affirming the trial court on direct appeal we have already set forth reasons from which it follows that appellees’ cross-appeal must be denied.

Affirmed on direct appeal and cross-appeal.

Justice McFaddin dissents in part.


author: Sam Robinson, Associate Justice. Paul Ward, Associate Justice

text:
    Swagger v. State.
    4859
    296 S. W. 2d 204
    Opinion delivered December 3, 1956.

      George Howard, Jr., for appellant.

      Tom Gentry, Attorney General; Paul G. Rawlings, Assistant Attorney General, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Eugene Swagger, a boy nineteen years of age, pleaded guilty to the charge of assault with intent to kill and was given the maximum sentence of 21 years in the penitentiary. Later, after having been committed to the penitentiary, he filed a motion to set aside the judgment of conviction and order of commitment on the ground that he was not represented by counsel at the time he entered the plea of guilty.

On the night of April 13, 1956, S. R. Cady was shot and seriously injured. He was in his home, and the shot was fired through a window from the outside. The next morning, April 14, Swagger was arrested. On Friday, April 20, the Prosecuting Attorney filed an information in Circuit Court charging him with assault with intent to kill. Monday morning, April 23, the defendant pleaded guilty to the information and was sentenced to 21 years in the penitentiary. He was committed to the prison, and on May 29, 1956 lie filed a motion to vacate the judgment.

He alleges in the motion:

“ (1) That he is 19 years of age and has never been previously convicted of a crime; that he has completed nine years of schooling; that he resided on a farm with his grandmother who is a widow and is 68 years of age; that he was not financially able to employ an attorney to represent him and that the court did not appoint an attorney to represent him, nor was he advised of his right to counsel; that he was not permitted to communicate with his grandmother while confined in the Jefferson County Jail; that his bond was set at $5,000; that he is not in fact guilty of an assault with intent to kill, as charged in the information filed against him on the 20th day of April, 1956, by the Prosecuting Attorney for the 11th Judicial Circuit; and that he was not advised and did not know the full consequences of his plea at the trial of this matter on the 23rd day of April, 1956, and that he hereby requests that he be permitted to withdraw the plea of guilty and enter his plea of not guilty. That he was improperly induced and encouraged to enter the plea of guilty. (2) The defendant hereby requests that the court permit him to submit testimony to show that he is not guilty of the charge and also requests permission to submit evidence to show that he was improperly induced and encouraged to enter a plea of guilty. (3) That the defendant’s mental condition was not brought to the attention of the court in view of the fact that he was not represented by counsel. (4) The defendant contends and alleges that he was deprived of one of his fundamental rights without due process of law in that he was not represented by counsel, and that this in essence was in contravention of the Constitution and laws of the State of Arkansas, and the due process clause of the Fourteenth Amendment to the Federal Constitution.” After a hearing, the trial court overruled the motion and Swagger has appealed.

Article 2, Section 10, of the Constitution of Arkansas provides that in all criminal prosecutions the accused shall enjoy the right to be heard by himself and his counsel. Ark. Stats. § 43-1203 provides: “If any person about to be arraigned upon an indictment for a felony, be without counsel to conduct his defense, and shall be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two (2) who shall have free access to the prisoner at all reasonable hours.” The Fourteenth Amendment to the Constitution of the United States provides that no State shall “deprive any person of life, liberty or property without due process of law.”

The defendant had not been in trouble previously, and knew nothing about lawyers or court procedure. At the hearing on the motion to vacate the judgment, he testified to facts substantially as alleged in his motion. The Prosecuting Attorney, in response to questions by the Court, testified:

“Q. I will ask you to state whether or not the Court advised with you prior to the entering of a plea of guilty regarding this matter?

A. Yes sir.

“Q. Did you confer; with this man, if so, what was stated to him about pleading guilty or not?

A. If the Court please, I did confer with the man in the jail and I told him at that time that he could enter a plea as stated from the stand and that I would get him 21 years • — ■ that it was immaterial to me whether he entered a plea or not, that he could get a lawyer and we would have a trial if he cared to have it. In the morning when he was in Court for arraignment and when he entered a plea I simply approached him at the bench, (interrupted).

“Q. I want to ask to interrupt you please and ask you if the Court asked you to check with him on that occasion?

A. The Court did.

“ Q. Go ahead.

A. I conferred with him at that time and asked him if he was still in the attitude of pleading guilty — if he were, when the Court arraigned him and asked him if he was guilty or not guilty to simply enter a plea of guilty.

“Q. I will ask you if before he entered a plea of guilty you discussed it with the Court and if you advised the Court the nature of the crime and so on?

A. I did.”

The Prosecuting Attorney was called back for cross examination and further testified:

“Q. Mr. Mullis, I believe you stated that you conferred with this man in the jail several times, at least twice, concerning a plea?

A. That’s right.

“Q. Did you inquire into his financial standard?

A. No. I told him that the Court would appoint a lawyer for him if that is what you are getting at.

“Q. Did you ask him about his relatives?

A. I did not.

“Q. Did you ever meet his aunt?

A. I did not. As I recall I never saw her until she was in the Courtroom that morning.

“Q. You did not inquire whether he had relatives in Pine Bluff?

A. I did not.”

The Court stated: “The Court wants to put this in the record — that in this case as in all cases of a grave nature like this the Court conferred with the Sheriff’s force, with the Prosecuting Attorney and satisfied himself that the man was guilty as indicated by what the proof would have been before he permitted him to enter his plea of guilty. The Court was advised by the Prosecuting Attorney as he has testified and when the man was brought into open court he was advised of the crime that he was charged with and the information was read to him and he was asked then if he was guilty and he stated that he was and wished to enter a plea of guilty. ’ ’

The record does not show that the Court personally informed the defendant that a lawyer would be appointed to represent him if he so desired. On cross examination, the Prosecuting Attorney stated that he had informed defendant while in jail that a lawyer would be appointed for him, but the defendant’s response, if any, to such communication is not shown, and it does not appear that the defendant fully understood the Court would appoint a lawyer to represent him, and no lawyer was appointed.

We have held that it is within the discretion of the Court as to whether the defendant would be permitted to withdraw a plea of guilty. Adams v. Plummer, Judge, 213 Ark. 209, 209 S. W. 2d 868. But, in Williams v. State, 163 Ark. 623, 260 S. W. 721, we held that where there are grounds for believing that the defendant is not capable of conducting his own trial, the Court should not permit the trial to proceed without the defendant having the aid of counsel. In the Adams case, appellant alleged in his motion that he was deprived of his liberty without due process of law, but it was pointed out by this court that the petitioner offered no evidence in support of the motion. In the case at bar, appellant did produce evidence as to the circumstances surrounding his plea of guilty. It was shoAvn that he is a negro boy, nineteen years of ago, and is practically illiterate although his petition alleges he has gone to school; that he lives with an aunt 68 years of age; that during the few days he was held in jail, between the time he was arrested and the time he entered a plea of guilty, his aunt tried to visit him, but the jail authorities would not permit her to do so. True, the Prosecuting Attorney told the defendant while he was in jail that on a plea of guilty he would get him a sentence of 21 years in the penitentiary. But, it appears that perhaps the accused did not know that 21 years was the maximum sentence he could receive. In fact, the record indicates that the accused may have thought that he could be sentenced to a longer term of imprisonment.

The proposition of whether the failure to appoint counsel for an indigent defendant was a violation of the due process clause of the Fourteenth Amendment has been before the courts many times. In most instances, since the decision in Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357, the courts have held it to be error to permit a young, inexperienced person to plead guilty to a serious charge where he has no attorney. In the Johnson case, speaking of the defendant, the court said: “He requires the guiding hand of counsel at every step in the proceedings against him . . . The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused . . . The purpose of the constitutional guaranty of a right to Counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights and the guaranty would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution.” However, the court is not bound in every case to appoint counsel. Betts v. Brady, 316 U. S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595. But, in Uveges v. Pennsylvania, 335 U. S. 437, 69 S. Ct. 184, 93 L. Ed. 127, it was held that where the gravity of the crime and other factors — such as the age and education of the defendant, and the nature of the offense charged, and the possible defenses thereto — render criminal proceedings without counsel likely to result in injustice, the accused must have legal assistance, “whether he pleads guilty or elects to stand trial, whether he requests counsel or not . . . Under either view of the requirements of due process, the facts in this case required the presence of counsel at petitioner’s trial. He should not have been permitted to plead guilty without an offer of the advice of counsel in his situation.” The defendant was charged with burglary.

In Gibbs v. Burke, 337 U. S. 773, 69 S. Ct. 1247, 93 L. Ed. 1686, the defendant in a State court did not request counsel and was permitted to try his own case. Several errors were committed prejudicial to the defendant. After conviction, the State Supreme Court denied the issuance of á writ of habeas corpus. The United States Supreme Court granted certiorari; appointed an attorney to represent the defendant and granted the petition for writ of habeas corpus. -The court said: “There have been made to this Court without avail arguments based on the long practice as to counsel in state courts to convince us that under the Fourteenth Amendment a state may refuse to furnish counsel even when needed by the accused in serious felonies other than capital. Our decisions have been that where the ignorance, youth, or other incapacity of the defendant made a trial without counsel unfair, the defendant is deprived of his liberty contrary to the Fourteenth Amendment. Counsel necessary for his adequate defense would he lacking. ’ ’

In Willey v. Hudspeth, 162 Kan. 516, 178 P. 2d 246, the Supreme Court of Kansas held that it was error to permit a 17 year old boy to plead guilty to the charge of breaking and entering in the night-time when he did not have the benefit of counsel. There, the court said: “When the petitioner, as a boy only 17 years of age, stood before the court, under the laws of this state he could not have entered into a valid contract obligating himself; he could not have voted; he could not have married without the consent of a parent; he could not, alone, without a guardian or next friend, have been heard to say anything in the court room in a civil action which would have been binding upon him. Should we say, in such circumstances, that the only thing he could have done alone, with legal significance, was to have pleaded guilty to a felony in a court of law?” And the court quoted from State v. Oberst, 127 Kan. 412, 273 P. 490: “ ‘In the case before us the defendant was a 17 year old boy ... The one thing this youngster needed more than anything else before pleading guilty to such a horrifying accusation was consultation with and the advice of a good lawyer.’ . . . Since the failure to appoint counsel for the petitioner in the present case and to require that the petitioner consult with such counsel deprived the court of jurisdiction to render judgment, it follows that the judgment entered upon the plea of guilty was void.”

In Zeff v. Sanford, Warden, 31 F. Supp. 736, it is pointed out that the court discussed the case with the Prosecuting Attorney and others to determine the sentence that should be imposed, and then permitted the defendant to plead guilty without the benefit of counsel. In a hateas corpus proceeding, it was held that counsel should have been appointed for the defendant even though it appeared that the judge, who had already been advised of the petitioner’s desire to plead guilty, was trying to ascertain all of the facts available concerning petitioner and his crime in order that a just sentence might be imposed.

And, in Howington v. State, 30 Okla. Cr. 243, 235 P. 931, the Criminal Court of Appeals of Oklahoma set aside a judgment of conviction entered on a plea of guilty although the defendant was told of his rights.

In Wade v. Mayo, 334 U. S. 672, 68 S. Ct. 1270, 92 L. Ed. 1647, the court said: “There are some individuals who, by reason of age, ignorance or mental capacity, are incapable of representing themselves adequately in a prosecution of a relatively simple nature. This incapacity is purely personal and can be determined only by an examination and observation of the individual. Where such incapacity is present, the refusal to appoint counsel is a denial of due process of law under the Fourteenth Amendment. ’ ’

It is our conclusion that in the facts and circumstances of this case the plea of guilty should not have been accepted without the defendant having benefit of counsel, and, in accepting the plea, the defendant’s rights under the Fourteenth Amendment were violated.

The State contends that since the defendant had been committed to the penitentiary the court lost jurisdiction to set aside the judgment. This is ordinarily true. Emerson v. Boyles, 170 Ark. 621, 280 S. W. 1005. But where, as here, the judgment is void because of the want of due process of law, it has no force and effect, and can be vacated at any time. It is said, in United States v. Bozza, 155 F. 2d 592, where sentence for a void act may be superseded by a new sentence: “It is no hindrance that the correction — even when it entails a greater punishment — occurs after sentence has been partially served or after the term of court has expired.”

The petitioner is not entitled to his absolute freedom, but it is ordered that the judgment and sentence on his plea of guilty be set aside and that he be placed in the custody of the Sheriff of Jefferson County that appropriate proceedings against him may be taken.

Reversed.

Mr. Justice McFaddin concurs.

Justices Millwee and Ward dissent.

Paul Ward, Associate Justice

(dissenting). Although I agree with practically everything that is said in the majority opinion and particularly with the construction placed on the several cases cited therein, I am unable to agree with the exact manner in which the majority reached its final conclusion, nor, am I able to agree with the final conclusion itself.

On the last page of the majority opinion appears this paragraph: “It is our conclusion that in the facts and circumstances of this case the plea of guilty should not have been accepted without the defendant having benefit of counsel, and, in accepting the plea, the defendant’s rights under the Fourteenth Amendment were violated.”

It strikes me that the majority in reaching the above quoted conclusion by-passed one' important question. It is: Does the evidence show that appellant did not have the capacity [mental or otherwise] to waive the offer of counsel? I have read carefully the decisions of the United States Supreme Court cited in the opinion together with additional opinions: Williams v. Kaiser, 323 U. S. 471, 65 S. Ct. 363, 89 L. Ed. 398; De Meerleer v. Michigan, 329 U. S. 663, 67 S. Ct. 596, 91 L. Ed. 584; and; Rice v. Olson, Warden, 324 U. S. 786, 65 S. Ct. 989, 89 L. Ed. 1367. The rule announced by all of these decisions pertinent to the question involved in this case, may, as I understand it, be stated in this way: Every person who is charged with or tried for a criminal offense and who is unable to provide counsel, is, under the Federal Constitution, entitled to have an attorney appointed by the court, unless he waives the offer of counsel. The cases go on to explain that the question of waiver of counsel may be raised several different ways. For example: (a) If the accused is not advised of his right to have counsel, then it follows that he has not waived it, and (b) if the accused is so lacking in mental capacity that he is unable to waive the offer of counsel then it cannot be said that he has waived it, or (c) if [as in the case of Gibbs v. Burke, Warden, 337 U. S. 773, 69 S. Ct. 1247, 93 L. Ed. 1686] during a trial some legal question arises which the accused [even though of full age and sound mind] could not possibly comprehend, then he cannot be said to have waived counsel and his rights have been violated.

Therefore, it appears to me, that in every case of this nature a fact question is presented. The point which I here try to stress is amplified in the Bice case, supra, where the court said: “It is enough that a defendant charged with an offense of this character is incapable adequately of making his defense, that he is unable to get counsel, and that he does not intelligently and understandingly waive counsel.” Applying the rule above announced I view the cause under consideration in this manner: Appellant was advised by the prosecuting attorney of his right to have counsel appointed by the court, and evidently did not accept it, and I am not convinced that appellant did not .have sufficient mental capacity to understand what he was doing when he refused the offer. In this connection, I hold to this view: If the evidence regarding appellant’s mental capacity poses a close question, then I would resolve the doubt, if any, in view of the finding of the trial court. Any other procedure, it seems to me, would be impracticable, unreasonable, and contrary to established procedure. In all other fact matters this court defers to the discretion and sound judgment of the trial judge, so why not in this instance. So, I would affirm.


author: Lee Seamster, Chief Justice.

text:
    Ark. Power & Light Co. v. McGowan, Admr.
    5-1088
    296 S. W. 2d 420
    Opinion delivered December 10, 1956.

      Holmes & Holmes and House, Moses <& Holmes, for appellant.

      John W. Elrod and Max M. Smith, for appellee.
   Lee Seamster, Chief Justice.

This suit was brought by the appellee, Homer E. McGowan, Administrator of the Estate of Billy E. McGowan, deceased, to recover damages for personal injuries and resulting death of decedent, which was caused by deceased coming in contact with appellant’s high-powered electrical transmission line. The trial resulted in a verdict and judgment against appellant for $11,450. This appeal follows.

For reversal, the appellant cites two points (1) the Court should have directed a verdict for appellant, and (2) there was insufficient proof of pecuniary loss to support a verdit.

The record reveals that Billy E. McGowan was temporarily employed by Texas Eastern Transmission Corporation for the purpose of performing general maintenance work for his employer at “Station G” near Kings-land, Arkansas. The mechanical facilities of “Station G” are completely encircled by a fence in the general shape of a rectangle.

The appellant, Arkansas Power and Light Company, owns and maintains a 110,000 volt electrical transmission line which leaves a three pole structure south of the above described enclosure, passes over the western side of the enclosure in a northerly direction to a three pole structure situated inside said enclosure where the transmission line terminates and from which termination point current is fed into a Texas Eastern electrical sub-station. The sole purpose of this transmission line is to serve “Station G.”

Near the southwest corner of the enclosure there is situated a boilerhouse, belonging to Texas Eastern, which is about 18 by 40 feet in size, running parallel with and located east of the transmission line at a point about midway along the span of the line. A smokestack extends upward from the west side of the roof of the boilerhouse, the top of the stack being over 35 feet above the ground. The transmission line is 31 feet above the ground. Three guy wires support the smokestack, two of said guy wires being anchored in concrete to the ground, the anchors being in a line approximately parallel with and alongside the west side of the boilerhouse.

On June 8, 1955, Billy E. McGowan and three of his fellow employees were painting the smokestack on the boilerhouse. They painted the north side of the smokestack by placing an aluminum extension ladder, consisting of two 20 foot sections, which had been extended to the desired length against a point on the north side of the stack. Thereafter, McGowan and two of the employees who were situated on the ground, the fourth employee being on the roof of the building, discussed the manner in which to move the ladder to the west side of the building. They pulled the ladder away from the smokestack and boilerhouse without reducing its length; carried it around to the west side of the building, placed the foot of the ladder on the ground and proceeded to raise the ladder to lean it against the west side of the smokestack. One man held the ladder, two other men pushed the ladder up from the ground, and the fourth man, on the roof, pulled on a rope fastened to the ladder.

As the ladder reached or approached an upright position it came near enough to the transmission line to become charged with electricity so as to become a conductor, resulting in an electrical shock to Billy McGowan and his fellow employees. Billy McGowaa died as a result of this electrical shock.

The appellee contends that the proximate cause of McGowan’s death was due to the carelessness and negligence, of the appellant as follows:

“1. By maintaining its 110,000 volt line with insufficient clearance with reference to said building and its attachments.

“2. By maintenance of its line at an unreasonable and dangerous distance from said building and its attachments, constituting an inexcusable hazard for workmen.

“3. By permitting said line to sag at a place unnecessarily close to said building and its attachments rendering the working conditions in, around, and about the building and its attachments unsafe and negligently exposing workmen to unnecessary and unreasonable risk by reason of the proximity of the line to said building and its attachments.

“4. By failure to use ordinary care by not complying with the standards generally recognized in the electrical industry to inspect and maintain its lines in a reasonably safe condition commensurate with the standards required for the safety of workmen and others.

“5. That the appellant failed and neglected to use ordinary care commensurate with the danger to be reasonably expected by maintaining and failing to move its lines a reasonable distance from the building and its attachments as required by the minimum standards and safety regulations governing the maintenance of electrical transmission lines in Arkansas.

“6. That the defendant was negligent by failure to place or cause to be placed near its high voltage transmission line where Billy McGowan was injured and killed a warning sign for the benefit of the deceased or other workmen of the nature and character of the defendant’s line concerning its danger and proximity to the place where the deceased was required to work, and the failure to place such warning sign is contrary to standards usually required in the utility industry in connection with ordinary electrical construction where hazards may exist. ’ ’

Appellant answered with a general denial of the allegations contained in the complaint and set up a defense of contributory negligence on the part of decedent, Billy E. McGowan.

E. E. Blankenship, chief operator for Texas Eastern Transmission Corporation’s “Station G,” testified that he was supervising the work of Billy McGowan, Donald Hillman and A. C. Gibson on the date of the accident. He and the three employees were performing .general maintenance work, which included the painting of the smokestack. The employees were using an aluminum extension ladder consisting of two 20 foot sections.

Blankenship further testified that he climbed this ladder and fastened it to the smokestack, in order to make it steady. The ladder had been extended approximately five or six feet. McGowan then ascended the ladder and spray painted the north side of the smokestack. After McGowan completed this portion of the operation, he descended to the ground so that he might help move the ladder to the west side of the building.

The ladder was lowered to the ground after the north side of the smokestack was painted and without reducing its extended length, the three employees carried the ladder to the west side of the building. Blankenship remained on the roof of the building so that he might help place the ladder against the west side of the smokestack. Three guy wires help support the smokestack. Two of these guy wires run from a point near the top of the stack to a point on the ground near the building. One of these two runs in a northwesternly direction and the other runs in a southernly direction.

Blankenship testified that McGowan and the other two employees, in moving the ladder from the north side of the building to the west side of the building, carried the ladder around outside of the northwestern guy wire, with the intention of “walking” the ladder up to a point on the west side of the smokestack. One of the men threw Blankenship a rope, which was attached to the ladder and he was steadying the ladder with the rope as they walked the ladder up. The ladder was in a straight line with the west side of the smokestack. "When the ladder reached an undetermined height or position, there was a flash like a flash of lightning, which knocked the rope out of Blankenship’s grasp and burned his hand. Blankenship testified that he knew that appellant’s electrical transmission line was situated near the building, but he did not know its height and did not realize that the ladder was near the line; that there was no sign on the building or guy wires warning of a high tension line and appellant corporation had never warned him or instructed him about the use of ladders around the lines.

Paul Zander, a consulting engineer, testified that the-National Electrical Safety Code sets forth formulas and tables whereby determination can be made of required clearances of electrical wires from buildings, attachments and various objects; that the distances from the electrical transmission lines of appellant to the building and its attachments are in violation of the Code; that the-least horizontal distance from the electrical transmission, to a guy wire anchor of the smokestack was 7 feet, 3-3-4 inches; that this distance was 5 feet, 2-1-4 inches less than the minimum distance required by the Code; that the height of the electrical transmission lines was 31 feet above ground level and the height of the smokestack was 35 feet above ground level; that the span of the electrical transmission lines, between poles, was 393.33 feet.

There was introduced into evidence a plat and blueprint of the Texas Eastern Transmission “Station G.” The plat and blueprint, which was prepared by Paul Zander, gave various measurements and distances of the transmission building, smokestack, guy wires and anchors, and electrical transmission wires.

D. B. Windsett, an electrical consulting engineer, testified that he visited the site of “Station G” and prepared blueprints and drawings showing various distances and measurements at the scene of the accident. When asked if these distances violated the National Electrical Safety Code, the witness stated:

“A. Based upon my interpretation of the Code and based upon the interpretation that these guy wires are a part of the building, these guy wires do fall within the distances or within the clearances which are specified by the Code and are less than those specified by the Code.”

The following then transpired:

“Q. Would you explain to the jury in detail, citing sections of the Code, and pointing them out, explain how you arrived at that conclusion, step by step1?

“A. In arriving at these clearances and also my interpretation of the Code it is based on the following sections of the National Electric Safety Code: Under Section 20, Rule 200, B, ‘These rules are not complete specifications but are intended to embody the requirements which are most important from the standpoint of safety to employees and the public.’ Rule 202, which are ‘Minimum Requirements,’ it states: ‘The rules state the minimum requirements for spacings, clearances, and strength of construction. More ample spacings and clearances or greater strength of construction may be provided if other requirements are not neglected in so doing.’ There is a footnote on that particular section, which reads: ‘Some of these minimum values are exceeded in much existing construction; service requirements frequently call for stronger supports and higher factors of safety than the minimum requirements of these rules.’ Section 211: ‘Installation and Maintenance.’ ‘All electric supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practicable.’ Rule 214-A, ‘ Current-Carrying Parts. To promote safety to the general public and to employees not authorized to approach conductors and other current-carrying parts of electric supply lines, such parts shall be arranged so as to provide adequate clearance from the ground or other space generally accessible, or shall be provided with guards so as to isolate them effectively from accidental contact by such persons.’ Any basic clearance calculations are based on the following rules and tables: ‘ 234-C, ’ which is headed ‘Clearances from Building.’ ‘1. General. Conductors shall be arranged and maintained so as to hamper and endanger firemen as little as possible in the performance of their duties.’ No. 4, ‘Conductors Passing by or Over Buildings,’ (a). Minimum Clearances. Unguarded or accessible supply conductors shall not come closer to any building or its attachments (balconies, platforms, etc.) than listed below . . .”

The witness then explained step by step his method of determining the required horizontal clearance under the facts involved in this lawsuit and states such clearance to be 13 feet 8 inches.

That distance as set forth in the Code is the minimum requirement. When asked if it was considered good practice in the industry to post warning signs and if it is usually and generally accepted that warning signs should be posted, warning of high voltage overhead at a station like “Station G,” the answer was:

“Either warnings or other safety guards.” Such as “any type of fence that would keep them out of the direct line of contact with high voltage lines.” I paid no particular attention to the fences around “Station G.” In my opinion, those fences would not keep unauthorized persons on the ground away from high voltage lines. It was not similar to fences put around substations. I have observed the various and sundry signs and have put up some warning in the nature of warning signs. It is neither expensive nor impractical in placing the warning sign there. I would place it most anywhere around the vicinity of that particular line. It wouldn’t make any difference as long as it was where it could be seen. The burn in the ladder introduced in evidence was caused in my opinion by direct contact with electricity. To make working conditions safe around that building I would make the recommendations to bring it up to minimum Code requirements. There are only two apparent things in my opinion that could be done to bring it in compliance. One would be to move the building and the other would be to move the line.

There was a stipulation by and between the parties “that the National Electrical Safety Code contains the guiding principles for overhead line construction practice, that Code having been prescribed for guiding principles for such practice by Rule and Regulation of the Department of Public Utilities (now Public Service Commission) of Arkansas.”

Carroll H. Walsb, an electrical engineer employed by appellant testified tbat he bad recently inspected the premises of ‘ ‘ Station G, ’ ’ tbat appellant corporation bas to design its facilities to comply witb tbe National Electric Safety Code and they must use tbe Code.

Carroll H. Walsb, C. E. Batbe and George D. Pollock, Jr., all electrical engineers and witnesses for appellant, testified tbat they bad inspected tbe premises of “Station G,” tbat appellant corporation designs its facilities to comply witb tbe provisions of tbe National Electric Safety Code; tbat based upon tbe blueprints prepared by engineer Paul Zander showing distances and measurements, and testimony adduced at tbe trial, tbe electrical transmission lines, as located, are in compliance witb tbe Code. They further testified tbat tbe electrical industry does not make a practice of placing warning signs (of high voltage lines) on transmission lines such as tbe one located at “Station G.” It was their opinion tbat Section 234 (c) of tbe Code (Clearance from Buildings of Conductors) has reference to distance from buildings and not space from buildings. Batbe further testified tbat in bis opinion tbe word ‘ ‘ attachments, ’ ’ as used in the Code, bad reference to balconies, platforms or any structure tbat a man could stand upon.

Tbe substance of appellant’s contention is tbat tbe trial court should have found as a matter of law that appellant was not negligent; tbat deceased was guilty of contributory negligence and in either event, tbe court should have directed a verdict in its favor.

Tbe above question bas been before this court many times and under various circumstances. In tbe instant case the appellant was in sole control of its power line, which ordinarily carried an electrical charge of 110,000 volts. Tbe only blueprints and plans, of measurements and distances between tbe transmission lines and tbe building and smokestack, were those tbat were introduced into evidence as prepared by Paul Zander.

The strict compliance or non-compliance with the abstract safety rules of the Code still leaves a factual question of negligence to be determined, under conditions shown to exist by the conflicting evidence in this case. There is no dispute that the guy wires on the west side of the building were anchored to the ground at a point slightly in excess of 7 feet, from a point on the ground directly beneath the transmission line. The evidence reveals that such attachment could be an obstruction to workmen performing maintenance work on the smokestack, particularly near the top of the smokestack which was four feet higher than the transmission line. The general provisions of the Code require electric companies to use a high degree of care and to so construct their facilities as to eliminate hazards to workmen and all other persons who may lawfully be near their power lines.

The evidence reveals that the employees of Texas Eastern deemed it necessary to carry the ladder on the outside of the anchored guy wires in order to raise it against the smokestack. The foreman, Blankenship, was situated on the roof of the building. He had hold of a rope that was attached to the ladder and was assisting his men in raising the ladder to the smokestack, when a flash occurred, resulting in an electrical charge and resulting death of Billy McGowan. Testimony reveals that the ladder either contacted the uninsulated transmission line or came near enough to it so as to cause the electricity to arc to the ladder.

In the case of Futrell v. Arkansas-Missouri Power Corp., 104 Fed. 2d 752, the court said:

“ (1) It is elementary that in considering a motion to direct a verdict the testimony and all inferences that reasonably may be drawn therefrom must be accepted in the light most favorable to the plaintiff. Adams v. Barron G. Collier, Inc., 8 Cir., 73 F. 2d 975.

‘ ‘ (2) It likewise is elementary that an issue of negligence generally is a question for the jury and only where all reasonable minds must reach the same conclusion from the facts does it. become one of law for the Court and Justify the direction of a verdict. Glynn v. Krippner, 8 Cir., 60 F. 2d 406; May Department Stores Company v. Bell, 8 Cir., 61 F. 2d 830.

“(3) An electric company, because of the very nature of its business, is required to use a high degree of care in the erection, maintenance, operation and inspection of its plant and equipment used in the generation and transmission of electricity for the protection of those likely to come in contact therewith. Dierks Lumber & Coal Company v. Brown, 8 Cir., 19 F. 2d 732; Arkansas Light & Power Company v. Cullen, 167 Ark. 379, 268 S. W. 12; Arkansas General Utilities Company v. Shipman, 188 Ark. 580, 67 S. W. 2d 178.”

In the case of Arkansas Power and Light Co. v. Hoover, 182 Ark. 1065, 34 S. W. 2d 464, this Court said:

“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 insulated, 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 ease: ‘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 facts in the case at bar are similar to the facts in the case of Arkansas-Missouri Power Company v. Davis, 222 Ark. 686, 262 S. W. 2d 916. In that case the electric wire, carrying 33,000 volts, had been installed by the power company in 1936. A sign-board was constructed nearby on private property in 1946. The signboard was situated approximately 4 feet from the power line. Davis received serions electrical burns when be lost control of an aluminum ladder which he was attempting to hook to the signboard and it came in contact with the electric' wire. Two expert witnesses testified to the effect that in their opinion the clearance of the power line was insufficient to comply with the accepted standards of the engineering profession and the electrical industry. In that case this Court held,

‘‘We think the testimony of Harvill and Zander was sufficient to take the case to the jury on the question of whether the defendant power company was negligent in permitting the electric line to remain within about 4 feet of the signboard after the construction of the board. The testimony of these two witnesses is one of the distinguishing features between this case and the case of Arkansas Power & Light Co. v. Lum, 222 Ark. 678, 262 S. W. 2d 920. It might be asked, how can it be said that the power company should have anticipated the very thing that did happen, but that the injured party be relieved from any duty to foresee what might happen even though he realized the dangerous qualities of electricity. The answer is that the questions of negligence and contributory negligence were peculiarly within the province of the jury to decide, there being sufficient evidence to justify the submission of both issues.”

In the instant case, there were two expert witnesses who testified for the appellee and three expert witnesses who testified for the appellant. Their testimony is in sharp conflict as to whether the appellant exercised due care in the maintenance of its power line at the place where the accident occurred. The two expert witnesses for appellee testified that appellant’s power line was not maintained in compliance with the standard code as adopted by the State and which is utilized by the electrical industry. The experts testifying for the appellant state that in their opinion the line does comply with the minimum standards of the Code. It is apparent that this conflict in testimony makes it a case for the jury to determine from all the facts in the case whether the appellant was negligent.

The evidence also discloses that the deceased was a new hand, working under the supervision of a foreman and with older and more experienced workmen. In order to paint the smokestack, it was necessary to raise and place the ladder against the smokestack. The foreman, Blankenship, testified that he knew that the transmission line was there hut did not realize the ladder was high enough to come close to the line; that he did not recall anyone from appellant corporation ever instructing them about the use of ladders around the transmission lines and that there were no signs on the building or guy wires, warning of a high tension line. Blankenship also testified that he did not warn his co-workers to be careful with the ladder around the transmission lines.

Witness Gibson testified that he was not conscious of any danger and that there was nothing to warn him of the proximity of the transmission lines to the building and smokestack. He also testified that the guy wires were anchored to a concrete foundation, which they had to get around with the ladder in order to paint the west side of the smokestack.

There is a complete lack of evidence to show that deceased had knowledge of any existing danger or knew of the close proximity of the transmission lines. Whether the deceased was using ordinary care for his own safety or whether he was guilty of contributory negligence, was a question for the jury to determine under the facts in the case. In Arkansas-Missouri Power Company v. Davis, supra, a case similar to the instant case, we held:

“In the circumstances we cannot say that Davis was doing something which an ordinarily prudent person would not have done; nor can we say that in the same or similar circumstances an ordinarily prudent person would not have lost control of the ladder.

“ ‘ What will constitute contributory negligence on the part of the person injured must depend upon the circumstances of each case. If from those circumstances reasonable men might differ as to whether the person did or did not exercise ordinary care, the question must be left to the jury for its determination.’ St. Louis & S. F. Railroad Co. v. Carr, 94 Ark. 246, 126 S. W. 850. See also Capitol Transportation Co. v. Carter, 204 Ark. 295, 161 S. W. 2d 746, and Bush, Rec., v. Jenkins, 128 Ark. 630, 194 S. W. 704.”

In the case of Coatney v. Southwest Tennessee Electric Membership Corp., Tenn. App., 292 S. W. 2d 420, the court held that it was a question for the jury to determine whether or not the plaintiff was guilty of contributory negligence in coming into contact with defendant’s high voltage line, even though plaintiff had been warned of the presence of the line.

The appellant also contends that there was insufficient proof of pecuniary loss to sustain a verdict and judgment for $5,000. The evidence shows that decedent had worked during the school vacation period in 1955 and had contributed $590 to the family fund, which decedent and his parents utilized as needed. The decedent had always worked and in prior years had contributed a portion of his earnings to his parents. The amount of the judgment is approximately $100 per year to each of his parents over a period of their life expectancy. We find that the determination as to the allowance of this item was a question for the jury. The amount of the judgment is not excessive.

Affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    J. I. Case Company v. Boothe.
    5-1096
    296 S. W. 2d 894
    Opinion delivered December 10, 1956.
    [Rehearing denied January 21, 1957.]

      Rose, Meek, House, Barron <& Nash, Phillip Carroll, and J. B. Reed, for appellent.

      Frances D. Holtzendorff and J. F. Holtzendorff, for appellee.
   J. Seaborn Holt, Associate Justice.

On March 20, 1954, Anderson Brothers, hardware dealers in Carlisle, Arkansas, sold to Boothe a J. I. Case combine for $7,731.49, and Boothe executed a title retaining note and sales contract for said purchase price. Anderson Brothers and Boothe discounted this note and contract to a banlc at Hazen, and both endorsed it with recourse. The note was to be paid in installments, and when endorsed to the bank the principal of the note had been reduced to $5,130.00 plus interest to maturity, which interest amounted to $512.86. Anderson Brothers had purchased the combine from a J. I. Case dealer in Memphis, Tennessee, and they were furnished a J. I. Case warranty on the machine, which contained these provisions, material here: “ALL NEW CASE PRODUCTS ARE SOLD SUBJECT TO THE FOLLOWING WARRANTY — J. I. Case Company, hereinafter called ‘Company,’ warrants each new case product . . . 1. To be well made of good material and to be durable with good care ... 2. If properly set up, adjusted, and operated by competent persons, to be capable under ordinary conditions of doing the work for which it is designed, (a) If upon operation by the purchaser in the manner aforesaid for two days any Case product shall fail to fulfill such warranty, written notice thereof shall be given at once to the dealer from or through whom the same was purchased. If the dealer does not remedy the defect within two days after notification, then immediate written notice of the defect particularly describing the same, specifying the time of discovery thereof and the time of notification to the dealer shall be given by registered letter to J. I. Case Company at its branch house having jurisdiction over such dealer’s territory, after which notice reasonable time shall be given to the Company to either send a competent person to remedy the defect or suggest by letter the remedy of the defect, if it be of such a nature. If the product is found by the Company to be defective in material or workmanship, then the Company will see to it that the defect is remedied, otherwise, purchaser agrees to pay the expenses incurred by the Company with reference thereto and in any event purchaser agrees to render necessary and friendly assistance without compensation. (b) If, after such notice and opportunity to remedy the difficulty, the Company fails to make the product fulfill the warranty, the part that fails shall be returned immediately by the purchaser, free of charge, to the place from whence it was received and the Company notified thereof at its Branch House aforesaid, whereupon the Company shall have the option to furnish another machine or implement or part in place of the one so returned which shall fulfill the warranty, or to cause to be returned the money and notes or proportionate part thereof received for such machine or implement or part and no further claim shall be made, (c) Failure to give notice, or the use of any Case product after the two (2) day limit aforesaid without giving such notice, or failure to return such product or part as afore7 said shall be conclusive evidence of due fulfillment of the warranty . . .”

The sales contract and note above, under which Anderson Brothers sold the combine to Boothe, contained the above J. I. Case warranty. The J. I. case dealer in Memphis was J. I. Case’s authorized dealer-agent and representative to sell combines, all of which carried the J. I. Case warranty. Boothe failed to pay anything on the note, and carry out the sales contract held by the bank, and the bank on April 5,1955, sued him and Anderson Brothers. Boothe answered, and in a cross-complaint made the J. I. Case Company a defendant, relied on the standard warranty above, alleged breach of said warranty in that the combine was defective, would not work, and, in effect, was worthless, and prayed for judgment against both Anderson Brothers and J. I. Case, jointly and severally. Anderson Brothers answered, denied giving any warranty and also alleged that the notice provision in the warranty had not been complied with, and counter claimed against Boothe for recovery on an open account and note. J. I. Case answered and denied giving a warranty, and alleged that even though Case had given a warranty, Boothe had not complied with its terms as to giving Case the notice required. Boothe replied to Case and alleged that Case had waived the warranty as to notice.

On a trial it appears that all defendants, Boothe, Case and Anderson Brothers, conceded that the Bank was entitled to a judgment in the amount of $5,130, on the note and sales contract sued on, and interest; and judgment was given against Boothe and Anderson Brothers. The cause was then tried to a jury on the issues as to the remaining parties, Boothe, Anderson Brothers and Case, which resulted in the following verdict: “We, the jury, find for Harry Boothe against J. I. Case Company and Anderson Brothers in the sum of $4,474, and also we find for Anderson Brothers against Boothe on the side note in the amount of $1,402.64 with 10% interest from October 10, 1955, and $109.65 for the open account, /s/ S. E. Greenwalt, Foreman.” This appeal followed.

For reversal J. I. Case says that: The court erred in permitting in evidence a warranty which was attached to the note and sales contract given to the bank, which warranty was different from the general J. I. Case warranty above that went with the combine; that Case was not a party to this changed or new warranty and not bound by its terms. Case further says: “. . . The form containing the J. I. Case Company warranty was discarded and a new warranty was given (to the bank). This warranty . . . recites on its face that it is the only warranty given. Said warranty was given by Anderson Brothers without the authority of and in violation of its dealer’s contract with the J. I. Case Company . . .” We see no merit to this contention. Regardless of the warranty attached to the note and sales contract given to the bank, the bank secured a judgment against Boothe and Anderson Brothers only, it sought no judgment gainst J. I. Case Company. It must be borne in mind that the J. I. Case warranty which admittedly went with the combine, bound the J. I. Case Company, its dealer in Memphis, who sold to Anderson Brothers in Carlisle, and bound Anderson Brothers who sold to Boothe, so Anderson Brothers and Case are clearly liable on this warranty to Boothe, unless Boothe violated certain conditions of said warranty, as alleged by appellants.

Without attempting to detail the evidence, we hold that there was ample substantial evidence to warrant the finding of the jury that the combine was defective and ■would not perform. Appellants say: “Assuming that the Case warranty is applicable, appellee did not comply with the notice provisions in Paragraph 2 (a), (b) and (c).” Whether the notice as to defects was given as required, or if not given waived by appellants, was a question of fact for the jury under proper instructions. Appellee presented evidence tending to show that notice was given and further that such required notice had been waived. Appellants make no serious contention that Anderson Brothers had continual notice of the defective condition of the combine, nor that they made approximately 30 or more efforts to repair the machine without success. Boothe continued to complain to Anderson Brothers that the machine did not work, Anderson Brothers called an agent and representative (It. J. Plunk) of J. I. Case in Memphis, Tennessee, on the telephone in regard to the defective condition of the machine, and after this telephone conversation further attempts to make the machine work, as directed by Plunk, Case’s representative in Memphis, utterly failed. In J. I. Case Threshing Mach. Co. v. Gidley, 28 S. D. 101, 132 N. W. 711, we find: “(10) It is well settled that, if the seller or his authorized agent acts on the notice received and undertakes to remedy the defects, it is a waiver of the objection that the notice was not in proper form, or was not given in proper time. The theory of the cases is that as the notice is for the benefit of the seller, if he acts on it, he waives any objection thereto.” There was substantial evidence that Boothe complied with the Case warranty by offering to return the machine to the seller at its place of business in Carlisle (Anderson Brothers) from whom he purchased it. When asked concerning Boothe’s offer to return the combine to him, Arlie Anderson, of Anderson Brothers, testified: “A. He didn’t ask me to take it back. He offered to return it. Q. He offered to return it and you didn’t accept his offer. A. I told him it would work a financial hardship on us if we did.” From this the jury was warranted in finding, as it must have, that the return of the machine under the warranty had been waived. There was evidence that Boothe was-induced to retain the machine beyond the time stated in the warranty by reason of the continued and repeated attempts and promises by Anderson Brothers to repair the machine and put it in proper condition. The knowledge, — which the testimony shows, — of Anderson Brothers, an authorized representative and agent of the Case Company, that the machine was defective and would not perform was notice to the company.

On the facts presented by this record we hold that there was substantial evidence presented to support the jury’s verdict and the judgment returned. We find no error in the instructions given by the court. Accordingly, the judgment is affirmed.

Justice George Rose Smith not participating.