Maryland Cas. Co. v. City of Jackson, 55,976

• Decision Date: 27 August 1986
• Docket Number: No. 55,976,55,976
• Citation: 493 So.2d 955
• Parties: The MARYLAND CASUALTY COMPANY v. The CITY OF JACKSON, Mississippi.
• Court: Mississippi Supreme Court

Page 955

493 So.2d 955

The MARYLAND CASUALTY COMPANY v. The CITY OF JACKSON, Mississippi.

No. 55,976.

Supreme Court of Mississippi.

Aug. 27, 1986.

Rehearing Denied Sept. 24, 1986.

Robert S. Murphree, Jackson, for appellant.

Matthew M. Moore, Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

I.

Frozen pipes and either uninterrupted or unauthorizedly restored water service that should have been discontinued combined to produce extensive water damage in an unoccupied Jackson dwelling and have generated this subrogation action against the City of Jackson.

Following a jury verdict for the City, the insurer subrogee appeals raising several procedural points as well as a question regarding the nature and extent of the City's duty in the premises. Finding no reversible error, we affirm.

II.

George J. Carr was an insured of the Maryland Casualty Company under a homeowner's insurance policy issued to cover a dwelling at 368 Queen Juliana Lane, Jackson, Mississippi. The policy was in effect in 1981 and 1982. In June of 1981 Carr moved out of the house and began trying to sell it. In August of 1981 Carr telephoned the City of Jackson's Water and Sewer Business Administration Office and requested that water service be discontinued at 368 Queen Juliana Lane. As a result of this call, it appears that the City issued a work order to make the water cutoff and that this was performed on August 14, 1981, by two City employees, Jerry Robey and Kenneth Wayne Johnson. A final bill was sent to Carr on August 17, 1981, on which it was noted that his water service had been terminated.

Prior to this time Carr had shut the cutoff valves under the sinks and commodes in his house.

Over the next several months Carr periodically checked his house. He made no attempt to check the water pressure but nothing rendered him aware that there was any potential hazard with respect to water service in his house.

January 1982 was an extremely cold month in Jackson. Carr was ill during this time and the next opportunity he had to check the house was on February 6, 1982. When he entered the house on that occasion Carr found a tremendous amount of water damage, apparently the result of pipes having burst in the ceiling of the house. The water was still running. Carr went to the City's water meter box outside and discovered that the valve was open. According to Carr, he could not see the glass on the meter face because it was covered with debris. He used a screwdriver to dig through the dirt and debris and finally reached the cutoff valve. With the assistance of his son-in-law, Jerry Davis, Carr closed the valve and this stopped the flow of water into the house.

Carr subsequently filed a claim with his insurer, Maryland Casualty Company. Maryland Casualty paid Carr $18,516.18, an amount all agree represents the reasonable and necessary cost of repairs to the house necessitated by the water damage.

As a part of the settlement of Carr's claim, Maryland Casualty took a subrogation agreement which in effect assigned to it any rights Carr may have had against third parties. Pursuant thereto, Maryland Casualty, on June 14, 1982, commenced the instant civil action by filing its complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi, naming the City of Jackson as Defendant. See Rule 17(b), Miss.R.Civ.P. Maryland Casualty charged that the City had been negligent in its duties to terminate water service to the Carr dwelling and that this negligence had proximately caused the $18,516.18 loss.

After various pre-trial proceedings, including discovery, the matter was called for trial on May 30, 1984, at the conclusion of which the jury returned a verdict for the Defendant, City of Jackson. Following denial of its motion for a new trial, Maryland Casualty perfected the instant appeal where the matter is now ripe for review.

III.

Maryland Casualty first argues that the Circuit Court erred in refusing to allow its counsel to cross-examine and otherwise treat as an adverse witness Jerry Sills, the superintendent of the meter reading department for the City of Jackson.

Maryland Casualty called Sills as a witness and established that he had been employed by the Jackson City Water Department for 16 years and that he was at present Superintendent of Meter Reading and Service Connections. After covering several uncontroversial points regarding procedures in the City Water Department, Sills was asked a leading question to which counsel for the City of Jackson objected. The Circuit Court sustained the objection on grounds that the witness had not been shown "hostile". Maryland Casualty's position was that "he's a City employee". Thereafter, counsel for Maryland Casualty sought to cross-examine Sills regarding some alleged discrepancies between Sills' testimony at trial and answers the City of Jackson had filed in response to pre-trial interrogatories. After initially sustaining this objection, the Circuit Court allowed cross-examination.

On appeal, Maryland Casualty argues that it was improperly prohibited from cross-examination of Sills and that this ruling had the effect of preventing it from calling other City employees. This, we are urged, radically affected Maryland's trial strategy resulting in sufficient prejudice to require reversal.

We think it clear at the outset that Sills was a person whom, under ordinary circumstances, Maryland Casualty had the right to cross-examine. The matter is controlled by Rule 43(b)(3), Miss.R.Civ.P., which at the time provided that a party might call as a witness one identified with an adverse party and then examine that witness by leading questions. ¹ See Harris v. Buxton T.V., Inc., 460 So.2d 828, 831 (Miss.1984). As the Superintendent of the Meter Reading Division of the City's Water Department, Sills was a person identified with an adverse party, that adverse party, of course, being the City of Jackson. To the extent that the Circuit Court may have prohibited Maryland Casualty from treating Sills as an adverse witness, it erred.

A review of the record, however, makes clear that the extent of this error was modest. Following the Circuit Court's original ruling, counsel for Maryland Casualty over the next two and a half pages managed to get off three clearly leading questions to which no objection was made. Then, with respect to the City's answers to interrogatories, the Court ultimately ruled, "I'll permit you on this point to go ahead and cross-examine him." Sills' testimony lasts only three pages longer in the record, during the course of which cross-examination was extensively allowed.

In sum, following his original rebuff at the hands of the Circuit Court, counsel for Maryland Casualty was able to cross-examine the witness for most of the remainder of the witness' testimony. It is true that we have held that it need not be shown what the witness would have said in response to the leading questions in order to preserve the point for appeal. Horne v. State, 487 So.2d 213, 216 (Miss.1986); Harris v. Buxton T.V., Inc., 460 So.2d 828, 833-34 (Miss.1984). Where, however, as here, counsel goes ahead and manages either without objection or with permission of the trial court to conduct modest cross-examination, it is difficult to say that the trial judge's original error was such that it affected a substantial right of the party. See Rule 103(a), Miss.R.Ev.; Rule 11, Miss.Sup.Ct. Rules.

As noted above, Maryland Casualty argues in its brief that it had planned to call "other supervisory employees of the defendant as adverse witnesses" and "to aggressively attack the Defendant's supervisory employees". We have from this record not the slightest clue who those witnesses were or even that they exist, as none was proffered. Leniency in allowing preservation of such a point for appeal does not extend so far as Maryland Casualty would have it. Before we would entertain such a point the party must in the trial record do something which makes clear that the point made in the subsequent brief is not just so much lawyer talk.

This assignment of error is denied.

IV.

Maryland Casualty next assigns as error the Circuit Court's denial of its motion to strike the testimony of the City's witness, Kenneth Wayne Johnson, whose name was not disclosed in answers to discovery.

The record reflects that prior to trial Maryland Casualty propounded certain interrogatories to the City of Jackson, Interrogatory No. 1 of which reads as follows:

Please state the names, addresses, home telephone numbers of all of the defendant's employees who performed work on or in any (way) serviced the water supply system of George J. Carr and Byrdie E. Carr at 368 Queen Juliana Lane, Jackson, Mississippi, from June, 1981 until the present.

Following up Interrogatory 1, Interrogatory No. 2 propounded to the defendant stated as follows:

In regard to the answer to Interrogatory No. 1 please state the date that each type of service was performed, the name of the employee performing it, and the nature of the service performed.

The City combined its response to Interrogatory No. 1 and 2 into one joint answer, and this answer read as follows:

On August 14, 1981, Jerry Robey turned off the water meter at 368 Queen Juliana Lane. (Emphasis supplied) Jerry Robey turned on the water meter on April 2, 1982, at that address and on May 11, 1982, Dwayne Martin turned off the water and pulled the meter at that address. The home address of Jerry Robey is 1103 Crawford Street, Jackson, Mississippi and his phone number is 981-7608. The home address of Dwayne Martin is 1620 Jones Avenue, Jackson, Mississippi.

The name of Kenneth Wayne Johnson is not disclosed. A party may be required to disclose the name of occurrence witnesses in answers to Rule 33 interrogatories or other forms of discovery. Anchor Coatings, Inc. v. Marine Industrial Residential Insulation, Inc., 490...