(concurring). The trial court’s error, as shown by the instructed verdict, was in construing the oral contract to be one guaranteeing “. . . continuous, uninterrupted electric service.”
Appellant testified that Fowles did npt tell her the company could not give current sufficient to operate the hatchery, or that service continuity would be complete. The guarantee was that enough current would be furnished to operate the equipment; and: “He said, ‘You go home, lady, and by all means buy this all-electric machine. We will guarantee to furnish enough current, and continuous current sufficient to operate those machines.”
It will be observed that the guarantee did not bind the company to supply continuous current, but continuous current sufficient to operate the machines.
Prior to purchasing the all-electric equipment, appellant had operated a smaller business at Danville, using oil to generate heat, and electricity to produce circulation. Interruptions had rendered the electric service unsatisfactory. The new equipment was installed in 1936, after deficiencies of the old service had been discussed with Fowles. Appellant’s testimony that improvements were promised is not disputed. Fowles explained that the line serving Danville also supplied current used in the operation of coal mines. The company, he said, “would take the line from across the river at Dardanelle Rock and bring it across the bridge,” bypassing Dardanelle. While there is no testimony this was not done, evidence is abundant that poor service was given. Whether the interruptions were due to negligence, or to • circumstances over which the company had no control —that is, conditions which, by the exercise of ordinary care, could not have been avoided—were matters for the jury.
Appellant testified that current was ‘ ‘ off’.’ as follows:
January 12 (1937), two hours and forty minutes; January 19, five hours; January 23 (Saturday) service was discontinued at ten o’clock in the evening, “and stayed off until Sunday, January 24.” “Mr. Fowles,” said appellant, “called and said the current would be turned on for a short time Monday morning, but it would have to be cut off again to work on the line.” It was turned on again Monday morning for about .fifteen minutes, after which service was not re-established until Monday night about eight o’clock. February 2 current was off thirty.minutes; February 9, three hours and fifteen minutes; February 21, one hour and forty-five minutes; February 24, two hours; March 3, three hours at one time, forty-five minutes at another time,, and, later, for fifteen minutes. On March 15 it was off two hours.
I think a correct interpretation of Fowles’ so-called guarantee is that “enough current”, had reference to sufficient voltage, amperage, etc.,—that is, energy sufficient to operate the heating units and fans. There does not appear to have been a violation of this phase of the agreement. The term “continuous current sufficient to operate the machines ” involves maintenance of flow without a break so protracted in point of time as not to'.interfere with incubation of the eggs or care of the product.
It is true appellant testified she explained to Fowles that the equipment required “a smooth, uninterrupted current,” and in explaining consequences of a deficient service she stated that when the temperature rose higher than 100 degrees (due to non-functioning of fans used for circulatory purposes—a contingency which temporarily occurs when current fails) an automatic alarm sounded. An inference might be drawn from this statement that any interruption in the supply of current is fatal to incubation. I think, however, that a more rational construction is that if the current be withheld during a protracted period, then heat already generated above 100 degrees (but withheld from the eggs by action of the fans) ascends because it is lighter than cooler air;; and until the generating units have time to cool, such reserve heat increases egg temperatures, causing deterioration or complete loss.
If with knowledge of efficiency required, a public service agency undertakes to meet a particular demand, it must exert all reasonable effort incident to the obligation, even though additional facilities may be needed.
The trial court’s instruction discloses that Fowles was appellee’s district manager. There is evidence that Danville was within his sphere of supervision. It will not be presumed, as a matter of law, that this manager did not have % authority to assure appellant that the line tapped by mines would be rerouted, by way of the bridge, thereby insuring better service. If, as appellant says, Fowles urged her to purchase the expensive equipment, promising “continuous current sufficient to operate,” then it became a matter of. defense for appellee to show that acts over which it had no control prevented fulfillment of the contract, or at least that it exercised reasonable care in repairing its lines and machinery expeditiously when unavoidable interruptions came.
I agree with the trial court that the company cannot be held to tlie performance of an impossible contract; nor will it be compelled to discharge a service which, in view of all the circumstances and relationships of the parties, is impracticable; for in that event the district manager would have exceeded his authority.
The question, it seems to me, is whether interruption of service over a period of sufficient duration to damage appellant was occasioned by appellee’s negligence, or did it come about through operation of forces over which the company had no control. These were matters for the jury.
Mr. Justice Holt agrees with the views here expressed.