Harper v. Hudson, 53283
| Decision Date | 21 July 1982 |
| Docket Number | No. 53283,53283 |
| Citation | 418 So.2d 54 |
| Parties | R. B. HARPER, d/b/a Harper House Movers v. Howard HUDSON. |
| Court | Mississippi Supreme Court |
Rex Gordon, Sr., Gordon, Myers & Gordon, Pascagoula, for appellant.
A. Vincent Blackwell, Pascagoula, for appellee.
Before WALKER, BROOM and ROY NOBLE LEE, JJ.
BROOM, Justice, for the Court:
Storm damage (Hurricane Fredric) to the house of plaintiff Howard Hudson (appellee) occurring during the time contractor R. B. Harper, d/b/a Harper House Movers (appellant) was attempting to move it for Hudson, forms background to this case appealed from the Circuit Court of Jackson County, the Honorable Clinton E. Lockard, Circuit Judge, presiding. Hudson, the owner, sued contractor Harper for damages to the house admittedly resulting from the storm. The jury found "for the Plaintiff, Howard Hudson in the amount of $10,500.00 and for the Defendant R. B. Harper in the amount of $1,500.00 for labor and materials." We reverse.
Harper appeals, contending that (1) the damages complained of were due to an act of God for which Harper cannot be legally liable, (2) erroneous jury instructions were given, and (3) the lower court erred in allowing into evidence an advertisement which Harper had bought in the local telephone directory.
Hudson's declaration alleged that the parties had orally contracted to the effect that Harper would move a house which Hudson had purchased. Moving operations began on August 9, but he charged that Harper
[W]as negligent in not completing such moving operation prior to September 12, 1979. That the Defendant failed, refused and negligently did not secure such home as it was located on the trailer aforesaid, and that on or about September 12, 1979, such home was destroyed, and that as a direct and proximate result of the failure to move such home and the negligence on the part of the Defendant as aforesaid, the Plaintiff suffered loss in the amount of Forty-five Thousand and 00/100 Dollars ($45,000.00).
Movement of the house was to be a distance of about a mile and a concrete slab was poured for the new location on August 17, 1979. Contractor Harper, the defendant, moved the den on September 11, but then bogged down when moving the garage and had to use a winch to get to the site. The two-story section of the house was loaded upon the trailer and fastened to steel beams. At that stage, Hurricane Fredric was posing a threat and, in order to protect the house situated on the trailer, the trailer was lowered and, according to Harper, he took every precaution and did everything reasonable to protect the house. Hudson takes the position that Harper did not properly brace the house so as to be prepared for the storm, which caused great damage to the upper two-story section of the house. Hudson offered testimony that the contract price for the house was $10,500.00.
SHOULD CONTRACTOR HARPER BE EXONERATED ON THE BASIS THAT THE DAMAGES WERE AN ACT OF GOD FOR WHICH HE CANNOT BE LEGALLY LIABLE? Harper contends that he
We think a jury issue was made as to whether Harper took the proper measures to protect the house from damage from the impending storm. There was at least some substantial testimony which would support the theory of Hudson's case that Harper was negligent in taking inadequate means to secure the house after placing it on the trailer, which, if believed, could be a proper basis of liability.
Plaintiff Hudson testified, as follows, about his conversation with Harper:
And Mr. Spooner pulled up and we both got into a conversation with Mr. Harper and got to talking about that hurricane. It was coming in here the next day. We was pretty well sure that it was coming by then--that was the day before. And we asked him what we was going to do about it. He said, "Well," he said, He said, "We're going to get them up there." He said, "The first thing Thursday morning ..."--that was on a Tuesday he told us this--he said, "First thing Thursday morning, I'm going to come back in here and we're going to hook onto this part here and take it right on up yonder and set that thing up, you know, and get all that thing done where you can get your money, Mr. Spooner." And he said, "Everything will be fine." Said, Well, that sounded good to me, but I knew as well as anybody there was a hurricane coming here that next day, and that thing was pretty vulnerable sitting up on that trailer. So, we went and talked to him about how we would secure it if that hurricane come in here, and he told us if that hurricane come in here, he would come up here and bind it down and auger it down and just, you know, told us how he would get it secured where there was no way it would blow down.... And I figured he would be coming any moment, you know, come up there and secure the house. He had it sitting up there on a trailer about two foot off the ground where, you know, you could just about grab it and rock it if, you know, you were strong enough. It wasn't stable at all.
Dennis Clark testified that the house was jacked up about three weeks "on the trailer" and that he observed the house just prior to the hurricane and went to it with others to see if it was tied down. The following is excerpted from his testimony:
Q Was the house tied down?
A No, sir. It had some boards around it, kind of braced off, but there weren't very many of them. They was small boards.
Q Alright. Where were these boards located?
A In the corners.
Q Alright. How many boards on each corner?
A Just one, I think.
Q And was there any other means of holding that house down to the trailer?
A No, sir. The trailer ... the tongue of the trailer was on blocks ... just had it level, but that's all.
Q And the only thing that you observed to steady that was one board on each of the four corners of that house?
A Yes, sir, just to keep it steady on the trailer.
We think this testimony and the other testimony was sufficient to raise a jury issue on liability based on negligence. This case is distinguishable from Harry Dole Dodge of Pascagoula, Inc. v. Cox, 246 So.2d 918 (Miss.1971) and other cases cited, in that here there is substantial evidence showing that after Harper removed the house from its moorings and onto a trailer, he...
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