Mississippi Power & Light Co. v. McCormick

• Decision Date: 23 March 1936
• Docket Number: 32136
• Parties: MISSISSIPPI POWER & LIGHT Co. v. MCCORMICK
• Court: Mississippi Supreme Court

166 So. 534

175 Miss. 337

MISSISSIPPI POWER & LIGHT Co. v. MCCORMICK

No. 32136

Supreme Court of Mississippi

March 23, 1936

Division B

1. GAS.

Gas company must either shut gas off or remedy defect as quickly as practicably possible when it has notice that gas is escaping in premises of a patron, since natural gas is an extraordinarily dangerous element, and those authorized to furnish it for use among the public are charged with a degree of care commensurate with danger.

2. GAS.

Where apartment tenant was injured by gas explosion after gas company had complied with her request to fix leak, issue of liability held for jury.

3 DAMAGES.

Rule for measuring damages for injuries is to view reasonable and dependable probabilities according to general experiences and observations of life, looking through all that may happen for all the years for which computation is to be made, rather than to consider solely the condition of things as to earnings at time of injury as compared with that at time of trial, especially if trial be within a short time.

4 DAMAGES.

Thirty thousand dollars to professional musician injured by gas explosion held excessive by ten thousand dollars where issue of permanent impairment of earning capacity depended upon future natural healing and certainty that she would continue permanently in her various enterprises.

HON. D M. ANDERSON, Judge.

APPEAL from circuit court of Scott county HON. D. M. ANDERSON Judge.

Action by Lois J. McCormick against the Mississippi Power & Light Company. From a judgment for plaintiff, defendant appeals. Affirmed, with remittitur.

Affirmed, with remittitur.

May & Byrd, of Jackson, for appellant.

The court erred in sustaining the demurrer of the appellee to the special plea of appellant, Mississippi Power & Light Company.

Under the contract it was appellee's duty to make the repairs. She called on the power company to, send some one to make the repairs and under the contract we submit that she was performing the duty which rested upon her to secure some one to make the repairs.

Y. & M. V. v. Denton, 160 Miss. 850.

The court erred in refusing the peremptory instruction requested by the appellant, the Mississippi Power and Light Company.

Notwithstanding the fact that the doctrine of res ipsa loquitur does not apply and could not apply in the case, it was in effect applied.

The authorities are unanimous, so far as we have been able to find, in holding that in order for that doctrine to apply, the thing which produced the injury must have been under the control of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised. Throughout all the decisions, one of the rules is that the thing which caused the accident must have been under the control of the defendant at the time of the accident.

Carter Oil Co. v. Independent Torpedo Co., 232 P. 419; Barrickman v. Marion Oil Co., 32 S.E. 327, 44 L. R. A. 92; 12 R. C. L. 912.

Negligence on the part of a gas company cannot be inferred from an explosion of gas escaping from its pipes, but it must further appear that the company has either in construction, repair or operation omitted the reasonable care which it should have observed.

Schaum v. Equitable Gas Light Co., 15 A.D. (N. Y.), 74 S.Ct. 44 N.Y.S. 284; Strawbridge v. City of Philadelphia, 2 Pa. 419; State v. Consolidated Gas Co., 85 Md. 637, 37 A. 263; Soulier v. Fall River Gas Works Co., 224 Mass. 53, 112 N.E. 627; McGahan v. Indianapolis, etc., Gas Co., 149 Ind. 335, 37 N.E. 601, 29 L. R. A. 355; 1 Thornton on Oil & Gas (4 Ed.), page 1408; Peters v. Lynchburg Light & Traction Co., 108 Va. 333, 61 S.E. 745, 22 L. R. A. (N. S.), 1188; Lewis v. Southern California Gas Co., 265 P. 930; 47 A. L. R. 492.

If no presumption of negligence applied in this case, and we say the authorities are all to the effect that it did not, the burden then rested upon the appellee to show not only that she was injured by reason of a gas explosion, but that the gas was escaping or had escaped by reason of the negligence of the power company or its employees.

We say, if the court please, that the record is insufficient to show the condition of the union joint at the time Lewis is alleged to have made the inspection, and no negligence on the part of Lewis is shown. Of course, if no negligence is shown on the part of Lewis, then he is not liable, and the power company is not liable, and the defendants should each have had the peremptory instruction requested.

Mere suspicion is insufficient to make out a case or to sustain a verdict.

Dr. Pepper Bottling Co v. Gordy, 164 So. 236; N. O. & N. E. R. R. Co. v. Holsomback, 168 Miss. 493; Columbus & Greenville Ry. v. Coleman, 160 So. 277.

At most, mortality tables are admissible only as an aid to the jury in making up their estimate from the age, health, habits and physical condition of the person whose expectancy is sought to be established, and as evidence, their value depends to a large extent on the manner in which they are made up, and mortality tables are usually tables based on selected lives, and such tables are of value only for life insurance purposes and are utterly useless to apply to unselected lives or lives generally. Nothing in this record shows whether or not the appellee was of the class supposed to be embraced in the supposed mortality table, and there is no proof in the record whatever which would warrant the jury in saying that the appellee was of the class covered by the supposed table.

19 R. C. L., page 222.

The verdict of the jury is excessive and so excessive as to indicate passion and prejudice on the part of the jury.

Shell Petroleum Corp. v. Kennedy, 167 Miss. 305; Chapman v. Powers, 150 Miss. 687; Y. & M. V. R. R. Co. v. Mothershed, 122 Miss. 835; City of Jackson v. Caver, 82 Miss. 583; Y. & M. V. R. R. Co. v. Lane, 46 So. 959.

Brewer & Hewitt, of Jackson, and Frank F. Mize, of Forest, for appellee.

Natural gas is recognized by all as a highly dangerous substance and so dangerous that courts have compared it to dynamite (German-American Ins. Co. v. Standard Gaslight Co., 73 N.Y.S. 973) and savage animals (Hahn v. Southwestern Gas Co., 82 So. 199). For this reason it has universally been held that those dealing with gas are bound to exercise a very high degree of care. Or, in other words, reasonable care commensurate with the dangerous agency with which they are dealing.

90 A. L. R. 1082.

After notice of a leak or deflect a gas company is bound to shut off the gas or remedy the defect and the ownership of the pipe in question is immaterial.

Portsmouth Gas Co. v. Maddox, 185 N.E. 527; Bell v. Huntingdon Devel. & Gas. Co., 145 S.E. 165; Memphis Consolidated Gas Co. v. Creighton, 183 F. 552; Nonnamaker v. Kay County Gas Co., 253 P. 296; Lennon v. Gas & Electric Co., 4 Ohio App. 153; Consolidated Gas Co. v. Conner, 32 L. R. A. (N. S.) 809; Windish v. Peoples Natural Gas Co., 248 Pa. 236.

Conceding for the sake of argument that there was no duty on the power company to remedy the defect, yet when they assumed the duty and entered upon the work they thereby accepted the duty of performing the task with reasonable care.

Southern Indiana Gas Co. v. Tyner, 97 N.E. 580; Richmond Gas Co. v. Baker, 36 L. R. A. 683; Bell v. Brooklyn Union Gas Co., 184 N.Y.S. 807; Ferguson v. Boston Gas Light Co., 49 N.E. 115; 12 R. C. L. 909.

Appellants were grossly negligent in failing to find the leak or in remedying the defect

Atkinson v. Wichita Gas Co., 18 P.2d 127; Thornton on Oil & Gas (5 Ed.), sec. 1096; Consolidated Gas Co. of Baltimore v. Crocker, 31 L. R. A. 785; Anderson v. Standard Gaslight Co. of N. Y. 40 N.Y.S. 671; Consolidated Gas Co. v. Conner, 32 L. R. A. (N. S.) 809.

Appellants could not thus lull plaintiff to sleep and then expect to be excused when injury thereby resulted.

Richmond Gas Co. v. Baker, 36 L. R. A. 683; Jamieson v. Indiana Natural Gas & Oil Co., 128 Ind. 555, 12 L. R. A. 652, 3 Inters. Com. Rep. 613; Mississinewa Min. Co. v. Patton, 129 Ind. 472; Consumers' Gas Trust Co. v. Perrego, 144 Ind. 350, 32 L. R. A. 146; Empire Laundry Mach. Co. v. Brady, 164 Ill. 58; Anderson v. Standard Gaslight Co. of N. Y., 40 N.Y.S. 671.

The evidence adduced in this case clearly presented a question for the jury.

Section 512, Code of 1930; Coleman v. Columbus Gas & Fuel Co., 179 N.E. 750; Consolidated Gas Co. v. Getty, 94 Am. St. Rep. 603; Ferguson v. Boston Gaslight Co., 49 N.E. 115; Consolidated Gas Co. v. Conner, 32 L. R. A. (N. S.) 809; Southern Indiana Gas Co. v. Tyner, 97 N.E. 580; Richmond v. Gay, 49 S.E. 482.

If the contract be construed to mean that a consumer is absolutely responsible for the condition of his appliances after notice of a leak and after assumption by the power company of the duty of inspection and repair the same would amount to the power company attempting to contract away its liability for negligence contrary to law.

Whitesides v. Thurlkill, 12 S. & M. 599; M. & O. R. R. Co. v. Weiner, 49 Miss. 725; So. Express Co, v. Hunnicutt, 54 Miss. 566; N. O. St. L. & C. R. R. Co. v. Faler, 58 Miss. 911; Chicago, St. L. & N. E. R. R. Co. v. Abels, 60 Miss. 1017; I. C. R. R. Co. v. Crudup, 63 Miss. 291; Johnson v. A. & V. Ry., 69 Miss. 191, 11 So. 104; Postal Tel. & Cable Co. v. Wells, 82 Miss. 733, 35 So. 190; Y. & M. V. R. R. Co. v. Grant, 86 Miss. 565, 38 So. 502; So. Express Co. v. Marks Rothenberg, 87 Miss. 656, 40 So. 65; Coleman v. Columbus Gas & Fuel Co., 179 N.E. 751; Miller v. Wichita Gas Co., 33 P.2d 130; Bell v. Huntingdon Dev. & Gas Co., 145 S.E. 165; 12 R. C. L. 909; Lannon v. Albany Gaslight Co., 44 N. Y. R. 459.

The judgment is not excessive.

McDonald v. Moore, 131 So. 824; ...