King v. Mississippi Power & Light Co.

• Decision Date: 11 June 1962
• Docket Number: No. 42370,42370
• Citation: 142 So.2d 222,244 Miss. 486
• Parties: Albert KING and Joe S. King v. MISSISSIPPI POWER & LIGHT COMPANY.
• Court: Mississippi Supreme Court

Page 222

142 So.2d 222

244 Miss. 486

Albert KING and Joe S. King v. MISSISSIPPI POWER & LIGHT COMPANY.

No. 42370.

Supreme Court of Mississippi.

June 11, 1962.

Odom, Odom & Pittman, Greenwood, for appellants.

Bell & McBee, Greenwood, Green, Green & Cheney, Jackson, for appellee.

RODGERS, Justice.

The declaration in this case charges that on June 1, 1960, at approximately 5 P.M during a rain shower or electrical storm, one of the defendant's uninsulated high voltage power lines broke into two pieces so that one of the loose ends fell on the ground and across the plaintiffs' pasture fence; that the fence became immediately charged with electricity; that a part of plaintiffs' herd of cattle were standing near and in contact with the fence; and that eight cows were killed instantly.

It is further charged that within approximately ten minutes after the death of the cattle the defendant was notified by telephone of the incident and the electrocution of the cattle; that a request was made of the defendant for immediate action in order to permit the removal of the cattle from the fence so that they might be prepared for food purposes; that within twenty minutes after the killing, Albert King was present at the scene prepared to process the cattle for food purposes; that the defendant took no action to cut off the electrical power; that plaintiff again notified the defendant of the situation but that defendant completely ignored his request for access to the cattle; that the local manager of the substation came to the scene, observed the stricken cattle, but negligently failed to advise that the cattle could be removed.

The declaration further charges that if the stricken cattle could have been removed within thirty minutes after death, the meat could have been properly prepared for food purposes, but that the plaintiff was denied access to the cattle for a period of two hours after the occurrence.

It is further charged that the defendant dispatched all of its repairmen to a distant area and left no one at its headquarters qualified to cope with the situation; that defendant's facilities would have permitted the cutting off of the power but this was not done because no capable employee was available.

There is a general charge in the declaration that 'defendant was guilty of negligence which directly and proximately caused the death of said cattle and the loss of said meat therefrom, in that defendant failed to maintain said power line in such a state of repair as to prevent said line * * * from falling across said pasture fence * * *' Following the above allegation, without further explanation, the pleader goes directly to the previous allegations of failure on the part of the defendant to act on the knowledge of the condition within a reasonable time so that the plaintiff could utilize the dead cattle for meat purposes.

This declaration does not charge general negligence on the part of the defendant in connection with the installation, maintenance and repair of the line. There is no suggestion that, on account of the way and manner in which it was erected or maintained, damage would reasonably follow as a result of an electrical or windstorm. In other words, there is no attempt to rest liability on any doctrine of general negligence. The litigation is based upon negligence on the part of the appellee after it had notice of the damage for failing to cut off the electric power which is said to have been the proximate cause of appellants' loss. The brief of the appellants makes no claim of error on the part of the trial court because of any alleged right that plaintiff might have had to recover damages because of general negligence. The sole basis upon which liability is predicated is that after the cattle were electrocuted is the current from appellee's power lines, notice was given to the company immediately and it negligently failed to de-energize the line for such length of time that the value of the cattle, for food purposes, was destroyed. The general allegations of negligence that appellee failed to maintain its power line in such state of repair as to prevent such line from falling across the pasture fence does not meet the requirement of Sec. 1464, Miss.Code 1942, Rec.

This Court, in the case of City of Hattiesburg v. Hillman, Adm'x, 222 Miss. 443, 76 So.2d 368, in quoting from 65 C.J.S. Negligence Sec. 21b, pp. 432-433, said that an act 'which may be prevented by the exercise of ordinary care is not an act of God.' It is nevertheless true that the allegation of negligence set out in the declaration in the case now before the Court is not sufficient to establish a cause of action showing negligence of appellee prior to the electrocution of the cattle. A mere charge of negligence does not demonstrate actionable negligence. Brown et al. v. City of Vicksburg et al., 108 Miss. 510, 66 So. 983. Moreover, the pleadings will be construed most strongly against the pleader. Sharp v. Learned, 182 Miss. 333, 181 So. 142, 182 So. 122. It is not sufficient to allege negligence as a mere conclusion of the pleader, but facts must be pleaded showing actionable negligence. Horton v. Lincoln County, 116 Miss. 813, 77 So. 796; Perry v. Standard Oil Company, 15 F.Supp. 563 (D.C.Miss.); Stokes v. Great Southern Lumber Company, 21 F.2d 185 (D.C.Miss.); 71 C.J.S. Pleading Sec. 13, p. 34.

Appellee asserts that the meat of cattle killed by electrocution is 'unwholesome as a a matter of law'; that there is no value in unwholesome food, and therefore it is not liable for its alleged failure to have de-energized its power lines or to have notified appellants that the power lines were de-energized in time for to have utilized the meat for human food. Appellee suggests that the following Sections of Miss.Code 1942, Rec., substantiate its contention: 2336, 2338, 4575-01 to 4575-20, 7108 (Sixth) and 7122.

It is apparent from an examination of Secs. 2336, 2338, Miss.Code 1942, Rec., that these two sections are criminal statutes, and under them one may be punished for the 'sale' of animals 'dying otherwise than by slaughter', 'slaughtered when diseased', and 'sell, or offer for sale * * * flesh of any animal which shall have died a natural death.' There is no word used in either of these two sections to indicate that the Legislature intended to make it a crime for the owner to use the carcass of an animal therein described. The courts will not interpret a criminal statute so as to make an act a crime unless it is clear that such was the intention of the Legislature. 22 C.J.S. Criminal Law Sec. 24(2), p. 62.

Sec. 4575-02(c) defines the term: 'food unfit for human consumption' to be 'meats or meat-food products which are so affected with disease that it would be dangerous to use the meat or other parts for human food; also all meats or meat-food products which are contaminated, putrid, unsound, unhealthful, or otherwise unfit for food, or which have been derived from any animal which has died as a result of disease or accident, or which was in a dying condition at the time of slaughter.' It is suggested that the words 'which has died as a result of * * * accident', mean that the meat is food 'unfit for human consumption' if killed by 'accident', and therefore has no value. The foregoing section of the code is found under the 'Definitions of terms' of the Meat, Meat-Food and...