Mississippi Power Co. v. Brooks

• Decision Date: 24 February 1975
• Docket Number: No. 47895,47895
• Parties: MISSISSIPPI POWER COMPANY v. Mrs. Sue BROOKS et al.
• Court: Mississippi Supreme Court

Page 863

309 So.2d 863

MISSISSIPPI POWER COMPANY v. Mrs. Sue BROOKS et al.

No. 47895.

Supreme Court of Mississippi.

Feb. 24, 1975.

Rehearing Denied April 7, 1975.

Easton, Cottrell, Galloway & Lang, Ben H. Stone, Gulfport, for appellant.

Cumbest & Cumbest, John L. Hunter, Pascagola, for appellee.

Before RODGERS, SMITH and SUGG, JJ.

SUGG, Justice, for the Court:

This is an appeal from a judgment rendered by the Circuit Court of George County against Mississippi Power Company in the amount of $500,000.

Mrs. Sue Brooks and her four children filed an action against Mississippi Power Company (MPC), five of its employees and one employee of Foster Wheeler Corporation (FWC) for the wrongful death of Billie Brooks, the husband and father of plaintiffs. Liberty Mutual Insurance Company, the Workmen's Compensation carrier for FWC, intervened in the suit for recovery of $2,766 paid by it to the plaintiffs as beneficiaries of Brooks and for all additional sums it might pay such beneficiaries to the date of final judgment. It further prayed that it be given credit for any additional sums recovered by plaintiffs, less reasonable costs of collection, thereby relieving it from further responsibility to the plaintiffs for benefits under the Mississippi Workmen's Compensation law to the full amount of any recovery related to the death of Brooks.

When plaintiffs rested, the court directed a verdict for three of the individual defendants and after all testimony was completed, granted a peremptory instruction for the three remaining individual defendants. The case was submitted to the jury as to the remaining defendant, MPC.

Plaintiffs alleged in their declaration that the place where Brooks died was under the primary control of MPC and that MPC failed to furnish Brooks a safe place to work and failed to warn him of the danger existing there. The declaration also charged that MPC undertook to institute a safety program, but failed to provide a program that adequately protected employees from hazards on the consturction site, and that Brooks met his death because of, 'either the non-feasance or mis-feasance of the defendant, Mississippi Power Company . . ..'

MPC denied any negligence on its part, denied it failed to furnish a safe place to work, denied it had control of the boiler area where Brooks' body was found and alleged that FWC had exclusive control of the area. MPC also denied any duty to inspect for safety and denied that it assumed any duty to make inspections.

MPC contracted with FWC to design and construct a boiler to be used in generating unit No. 5 at Plant Jack Watson in Harrison County, Mississippi. The boiler was to be built within the structural steel framework previously erected by MPC. FWC was an independent contractor which agreed to design, construct and install a boiler with full and complete control over the mode and method of the work. FWC was to furnish all materials and labor, make the boiler safe for progress inspections, furnish its own electric power from a delivery point on the ground outside the boiler unit and make full tests of the boiler before its acceptance by MPC. FWC was the only contractor involved in the construction of the boiler and designed and built the entire boiler as a self-contained unit. At the time of the death of Brooks, the boiler had not been tested by FWC and control thereof had not been assumed by MPC.

Billie Brooks was not an employee of MPC but was employed by FWC as a boiler maker. On July 25, 1972, Brooks and a fellow employee, Gary Redd, were working on a part of the boiler located beneath the hoppers. At noon Redd left to eat lunch, but Brooks remained behind. When Redd returned from lunch, he found Brooks' tools, lunch box and thermos bottle where the two had been working that morning, but Brooks was not there. Soon after lunch a search for Brooks was begun, and his body was located at the bottom of a vertical air duct about 4:30 that afternoon.

On the east side of the boiler, there was located a primary gas flue consisting of a vertical and a horizontal duct. The ducts were rectangular in shape and measured four feet by eight feet. The vertical duct was about 50 feet long with a metal damper at the bottom about 35 feet above ground level. The vertical duct extended upward from the damper with the top being 80 to 85 feet above ground level. The body of Brooks was found in the vertical duct lying on the damper, and since the duct was enclosed, it was necessary to cut a hole in the side of the duct through which his body was removed. About 45 feet above the damper, a horizontal duct connected the vertical duct to the hopper area and a large flue adjacent to the hoppers. The horizontal duct was 4 feet wide, eight feet tall and approximately 20 feet long. There were expansion joints on each end of the horizontal duct where it joined the vertical flue and the hopper area. In the hopper area there were five hoppers joined together with each hopper tapering to a small hole at the bottom. The bottom part of each hopper resembled an inverted pyramid. At the point in the hoppers where they began to taper, iron beams about six inches wide, called 'walk beams,' were installed which extended from one side of the hopper to the other side.

All of the area in the horizontal duct, the vertical duct, the hoppers and flue adjacent thereto was completely enclosed with the exception of two small access holes, one on the side of the hopper near the top and one on the side of the large flue adjoining the hoppers. Both access holes were located on the sides of the hoppers and large flue where the horizontal duct connected with the hoppers. One of the access holes provided permanent access while the other was temporary.

Entry into the horizontal duct from the place where Redd left Brooks at noon could be accomplished only through the access holes...