Mississippi Power Co. v. Luter

• Decision Date: 17 August 1976
• Docket Number: No. 48703,48703
• Parties: MISSISSIPPI POWER COMPANY v. Everett LUTER.
• Court: Mississippi Supreme Court

Page 753

336 So.2d 753

MISSISSIPPI POWER COMPANY v. Everett LUTER.

No. 48703.

Supreme Court of Mississippi.

Aug. 17, 1976.

Rehearing Denied Sept. 21, 1976.

Eaton, Cottrell, Galloway & Lang, Ben H. Stone, L. Kenneth Krogstad, Eaton A. Lang, Jr., Gulfport, Deavours, Weems & Gilchrist, Laurel, for appellant.

Estes & Blackwell, Gulfport, David Massey, Laurel, Pittman & Nobles, Jackson, for appellee.

Before INZER, SUGG and BROOM, JJ.

SUGG, Justice, for the Court:

Everett Luter was awarded judgment for $162,500 against the defendant, Mississippi Power Company, for injuries received when a television antenna came into contact with an overhead electrical distribution line. We reverse and remand for a new trial.

The issues are: (1) Is Mississippi Code Annotated section 11-11-5 (1972) unconstitutional? (2) Did the Circuit Court err by selecting a jury after this case had been removed to Federal District Court and before it was remanded? (3) Was the defendant entitled to a peremptory instruction because plaintiff's negligence was the sole proximate cause of his injuries and because plaintiff failed to meet the burden of proof on the question of foreseeability?

I

Plaintiff contends that Mississippi Code Annotated section 11-11-5 (1972) violates the provisions of Art. 3, § 14 Miss.Const.1890, ¹ and Section 1 of the Fourteenth Amendment to the United States Constitution. ² Section 11-11-5 is a venue statute and permits suits against power companies in any county in which a company may have a power line.

Defendant's argument that it is denied equal protection under the law by the venue statute is predicated on the fact that all public utilities listed in the Public Utilities Act (Mississippi Code Annotated section 77-3-1 et seq. (1972)) are not included in the venue statute. This argument overlooks the fact that the statutes have different purposes. The venue statute was enacted for the purpose of fixing venue in certain cases, whereas, the public utilities act has for its purpose the regulation of certain public utilities by the Public Service Commission. All electrical power companies receive the same treatment under this venue statute; therefore, the fact that all public utilities are not included in both the venue statute and the public utilities act does not deprive defendant of due process or deny it equal protection of the laws.

Art. 3, § 14 Miss.Const. of 1890 and section 1 of the Fourteenth Amendment to the United States Constitution safeguard fundamental rights and do not extend to the forum which the state may designate for the protection of such rights. Discretion under the venue statute, providing for trial of a case in any one of several counties does not violate the guarantee of the equal protection of law. 77 Am.Jur.2d Venue § 3 at 835 (1975).

We held the venue statute (Mississippi Code Annotated section 11-11-5) was constitutional in Mississippi Power & Light Co. v. Lowe, 179 Miss. 377, 175 So. 196 (1937) (appeal dismissed 302 U.S. 644, 58 S.Ct. 123, 82 L.Ed. 501 (1937)) and the argument by defendant in this case does not persuade us that our holding in Lowe should be changed.

II

The next argument of defendant is well taken and requires reversal of this case. On April 24, 1974 this case was removed to the U.S. District Court of the Southern District of Mississippi. On April 25, 1974 the case was called in the Circuit Court of Smith County and a jury was selected and impanelled over the objection of defendant. The jury was permitted to disperse and was reconvened to try the case after the case was remanded to the Circuit Court from Federal District Court. Defendant objected on the ground that the court had no jurisdiction to impanel the jury after the case was removed to Federal District Court.

This Court held in Bean v. Clark, 226 Miss. 892, 85 So.2d 588 (1956) that, when a case is removed to a Federal District Court under 28 U.S.C.A. § 1446, the state court shall not proceed after defendants give written notice of removal to all adverse parties and file a copy of the petition of removal with the clerk of such state court. ³ We also held that any action taken in the state court thereafter before remand, had no force or effect. The jury in this case was impanelled without authority of law and any verdict rendered by it was a nullity.

III

Plaintiff has resided on Rhorer Avenue in Gulfport since 1946. Defendant erected its power line in 1946 and from the time of erection to the time of the accident on June 4, 1973, the only changes made in the high voltage transmission line were to increase the voltage from 2300 to 13,200 volts and install a new transformer. The high voltage line was located 24.3 feet above ground level at the point where the antenna came in contact with it.

In 1965 plaintiff's outdoor television antenna was on a mast attached to his house at the end of the gable; the mast was 24.95 feet in length. The antenna portion was destroyed during Hurricane Betsy in 1965 and thereafter plaintiff utilized 'rabbit ears' to receive his television signal. About one month prior to the accident, plaintiff requested his nephew, Matthew Walker, to install a new antenna which had been given to him by his daughter. Walker took down the old mast, and attached to it an additional five foot extension along with the new antenna. He did not erect the antenna on that day because he did not have either the guy wires or the lead-in wires necessary to complete the installation. Matthew left the antenna and mast in the yard propped on an old television cabinet adjacent to plaintiff's home.

On the day of the accident plaintiff moved the antenna from the yard because he felt it was dangerous for his grandchildren to play in the yard with the antenna in that position. He propped it up in a medium size Magnolia tree located in front of his house between his house and the high voltage line. Plaintiff has no recollection of how the accident occurred but he was found seated in a metal lawn settee with burns on the back of his neck extending through his body to his foot. The antenna extended through the tree and was in contact with the 13,200 high voltage line overhead.

Defendant contends that the accident resulted solely from the negligence of plaintiff and it could not foresee the accident happening as it did.

In Mississippi Power & Light Company v. Shepard, 285 So.2d 725 (Miss.1973) this Court, in an opinion by Presiding Justice Rodgers reviewed the Mississippi cases dealing with accidents caused from persons coming in contact with high voltage lines and set forth clearly the duties of companies operating high voltage electric lines.

In Shepard, it was pointed out that since 1907 this Court has bound corporations handling the dangerous agency of electricity to the very highest measure of skill and care in dealing with this deadly agency. (285 So.2d at 730). Shepard also reaffirmed the rule that a public utility company must place its wires so they are not dangerous to persons and property. It is the continuing duty of the utility to maintain its wires over streets and highways in such a manner that they will not become dangerous to persons and property. The Court also recognized that the duty is not absolute. The utility is not an insurer against all injuries in any event, however, the rule is not satisfied so as to relieve the utility from liability unless and until it is shown that the company has exercised the highest degree of care to prevent the danger (285 So.2d at 732).

On the question of foreseeability, Shepard reaffirmed the proposition that:

It is not necessary that the particular injury should be anticipated, but that some injury would reasonably be anticipated, and, if the negligence of the defendant was a continuing and contributing cause of the injury, the defendant is liable. (285 So.2d at 734) (Emphasis supplied).

Furthermore, in Galloway v. Singing River Electric Power Association, Inc., 247 Miss. 308, 152 So.2d 710 (1963) we stated:

Appellee was required to exercise the highest degree of care in maintenance of the power lines. It is common knowledge that in most, if not all, parts of Mississippi not within the immediate area of a television station, practically all houses contain televisions, even the humblest. In these areas the antennas extend to considerable heights. The jury would be justified in finding that in the exercise of the proper degree of care appellee should have known of the proximity of Stringfellow's television antenna to its power lines. We hold that the question of notice was for determination of the jury. (247 Miss. at 313-14, 152 So.2d at 712).

Defendant contends that it had erected its lines in accordance with minimum requirements of the National Electric Safety Code and thereby had observed the care required of it. However, in Galloway we held that compliance with the National Electric Safety Code is not conclusive on the question of due care. Although compliance is a relevant fact on the question, compliance only relieves the utility of the charge of negligence per se. If defendant had failed to comply with the minimum requirements it would be guilty of negligence per se.

Defendant says this accident was nor foreseeable because the antenna would not have made contact with the high voltage line if it had fallen from the point of the original installation. The exhibit of the defendant shows however, that had the antenna been erected at the corner of the porch on the house it would have made contact with the high voltage line in the event it fell.

This action of the plaintiff constituted negligence and the jury was properly instructed that plaintiff was guilty of negligence as a matter of law. In Defendant's Instruction No. 14 the jury was told to find for the defendant if plaintiff's negligence was the sole proximate cause of the accident. Defendant's Instruction No. 15 was a contributory negligence instruction given under our comparative negligence statu...