Home Ins. Co. of New York v. Atlas Tank Mfg. Co., 45572

• Decision Date: 12 January 1970
• Docket Number: No. 45572,45572
• Citation: 230 So.2d 549
• Court: Mississippi Supreme Court
• Parties: The HOME INSURANCE COMPANY OF NEW YORK and Mississippi Power & Light Company v. ATLAS TANK MUNUFACTURING COMPANY, Inc.

Page 549

230 So.2d 549

The HOME INSURANCE COMPANY OF NEW YORK and Mississippi Power & Light Company v. ATLAS TANK MUNUFACTURING COMPANY, Inc.

No. 45572.

Supreme Court of Mississippi.

Jan. 12, 1970.

Rehearing Denied Feb. 9, 1970.

Wise, Carter & Child, Green, Green & Cheney, M. Curtiss McKee, Bethel Ferguson, Jackson, for appellants.

Watkins & Eager, Carter, Mitchell & Robinson, William E. Suddath, Jr., Jackson, for appellee.

BRADY, Justice:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County, Mississippi, wherein the appellant sought indemnification from the appellee for damages in the amount of $40,000 suffered as a result of a settlement with the heirs of one Henry Reese. Henry Reese was working for the appellee when a piece of machinery, which he was helping to operate beneath the appellant's 13,000 volt utility distribution line, came in contact with it, thereby causing death by electrocution. A lengthy stipulation of facts by agreement was introduced into evidence. From the chancellor's denial of the right of indemnification claimed by appellants from the appellee, this appeal is perfected. We shall treat the insurer and the insured as one entity.

The testimony in the record and the stipulation of facts establish that, at some time between the middle of March 1965 and June 1965, the appellee filled in with dirt a ravined area, part of which it owns, part of which it leases, and part of which was a portion of the area dedicated as Pearl Street in the City of Vicksburg, but which has never been opened as a city street. The defendant, by filling and leveling this area, part of which was adjacent to and beneath the appellant's power line, thereby lowered the clearance of the appellant's power line above the ground from approximately thirty-three feet to approximately nineteen and a half feet. The appellant's power distribution line was constructed not upon land owned or leased by appellee but upon an easement on the side of the unopened city street. After acquiring the additional surface area by the filling operation and prior to the death of Henry Reese, the appellee used the new area by stacking thereon its manufactured butane tanks. The stacking area was east and west of the power line. The utilization of the area ultimately resulted in the appellee stacking underneath the distribution line a row of butane tanks. The distance between the tanks stacked in two tiers and the transmission line of appellant was reduced to fourteen and a half feet. The appellee had directed its employees to stack tanks in the new area which had been filed and leveled, and further required removal of the tanks from the aforementioned area onto trucks for delivery to purchasers. On August 21, 1965, though the appellee had been warned on August 20, 1965, by Mr. David I. Bridgers, appellant's superintendent, not to allow any persons to work near or within a ten foot distance of the power line while the dangerous low clearance condition of the low line existed, nevertheless the appellee required Henry Reese and other employees to work there.

In addition to the testimony and the stipulation, certain facts were admitted by the pleadings. These facts so admitted were: (1) That the heirs of Henry Reese were entitled to receive and recover the present net cash value of his life, his funeral expenses, loss of love, affection, society and companionship, pain and suffering, mental anguish and other damages allowed by law; (2) that the appellant, Mississippi Power & Light Company, was liable to the heirs of Henry Reese; (3) that the heirs of Henry Reese had a valid cause of action to recover damages for his death; (4) that the line of the appellant, Mississippi Power & Light Company, was constructed and maintained in accordance with the statutes of the State of Mississippi, the ordinance of the City of Vicksburg, and the franchise under which it operated in the City of Vicksburg, and (5) that after the filling was done by the appellee, atlas Tank Manufacturing Company, Inc., under the power line of the appellant, Mississippi Power & Light Company, there existed an imminent and inherent danger of electrocution to the employees of the appellee working under and in close proximity to the distribution line of Mississippi Power & Light Company.

The record discloses that Mr. Dennis East, appellee's manager, in the spring of 1965 requested that one pole of the appellant's line be moved and that the transformer bank on another pole be changed, and also that a second pole be installed prior to the grading and filling. Mr. East testified that with assurance from the appellant's supervisor, Mr. J. W. Hall, who inspected the area with Mr. East, that appellant would make the requested changes concerning the poles, the appellee proceeded with the grading and leveling. The appellee further asserts that from this time until August 21, 1965, several efforts were made to notify and notices and requests were transmitted from Atlas Tank Manufacturing Company, Inc., hereinafter designated as Atlas, to Mississippi Power & Light Company, hereinafter designated as MP & L, which sought the raising of the high powered lines and the moving of the pole but that MP & L, after it had moved one pole, did not complete the operation. The actual reason for not completing the work was that the appellee was unable to designate at that time the exact location of the second pole. Numerous issues are assigned and ably urged by appellants inexcellent and voluminous briefs. It is unnecessary in determining the rights of the litigants to review all of the issues assigned and we will discuss only those essential to the disposition of this cause. The basic issue presented is: Was the admitted negligence of the appellant active, primary, or positive or was it passive, secondary, or negative? These words are the designations universally used to differentiate the indemnifiable from the non-indemnifiable types of negligence.

The general rule governing implied indemnity for tort liability is that a joint tort feasor, whose liability is secondary as opposed to primary, or is based upon imputed or passive negligence, as opposed to active negligence, or is negative negligence as opposed to positive negligence, may be entitled, upon an equitable consideration, to shift his responsibility to another joint tort feasor. However, where the fault of each is equal in grade and similar in character, the doctrine of implied indemnity is not available since no one should be permitted to base a cause of action on his own wrong. Thus, the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case. 41 Am.Jur.2d Indemnity § 20 (1968); 42 C.J.S. Indemnity § 20 (1944); Werner, Contribution and Indemnity In California, 57 Cal.L.Rev. 490, 491 (1969); Davis, Indemnity Between Negligent Tort Feasors: A Proposed Rationale, 37 Lowa L.Rev. 517, 538 (1952); and Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa.L.Rev. 130, 147 (1932).

Two critical prerequisites are generally necessary for the invocation of noncontractual implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong. Bush v. City of Laurel, 215 So.2d 256 (Miss.1968); Southwest Mississippi Electric Power Ass'n v. Harragill, 254 Miss. 460, 182 So.2d 220 (1966). In Bush v. City of Laurel, supra, this Court held that:

Except as provided by Mississippi Code 1942 Annotated section 335.5 (1956) there is no right of contribution in Mississippi where the parties are joint tort feasors or are in pari delicto-i.e., where the injury resulted from the concurring negligence of both parties. However, parties are not pari delicto when one party does the act or creates a dangerous situation and the other party is liable or because of passive negligence in failing to remedy the defect or because of a non-delegable statutory duty. (215 So.2d at 260.)

From the pleadings, stipulation, the above facts and law it is conceded that Atlas was actively negligent in reducing the height of the lines by building the fill, by stacking the tanks underneath the power lines, by requiring their removal by the Hyster under the power line, and in disregarding the warning of MP & L of August 20, 1965. The question therefore presented for this Court is: On the facts, was MP & L 'actively' or 'passively' negligent in failing to raise the power line; or, stated differently, was the chancellor manifestly wrong in holding that MP & L was actively negligent? The negligence assigned to the appellant, MP & L, was that it had failed to inspect its lines and realize that the line was dangerously lower than required in the safety regulations; that it negligently delayed and failed to raise the lines after knowledge of the dangerous circumstances was made known to the appellant, or by the exercise of the highest degree of care required should have been known by MP & L, and that it did not raise the line when the original alterations were made.

This case is distinguishable from the Bush case, supra, on the facts. It should be noted that the object involved in the case at bar is no mere shallow ditch in the ground which might be stepped over or sidestepped and which offers no potential death dealing injury or consequence. The object...