Read v. Southern Pine Elec. Power Ass'n, No. 57094

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSULLIVAN; ROY NOBLE LEE; ROBERTSON; ROBERTSON
Citation515 So.2d 916
Decision Date12 November 1987
Docket NumberNo. 57094
PartiesBobbie READ v. SOUTHERN PINE ELECTRIC POWER ASSOCIATION.

Page 916

515 So.2d 916
Bobbie READ
v.
SOUTHERN PINE ELECTRIC POWER ASSOCIATION.
No. 57094.
Supreme Court of Mississippi.
Nov. 12, 1987.

Page 918

William R. Ruffin, R.K. Houston, Bay Springs, for appellant.

J.W. Land, Bryan, Nelson, Allen, Schroeder & Randolph, Hattiesburg, John K. Keyes, Keyes & Rogers, Collins, for appellee.

En Banc.

SULLIVAN, Justice, for the Court:

Bobbie Read (Read) filed a complaint against Southern Pine Electric Power Association (SPEPA) for damages allegedly caused by a SPEPA transformer providing electricity to Read's residence. At the conclusion of trial in the Circuit Court of Jasper County, the jury returned a verdict for Read. Subsequently the trial court granted SPEPA's motion for judgment notwithstanding the verdict. From judgment for SPEPA, Read appeals. SPEPA cross-appeals the trial court's denial of its motion for attorney's fees incurred during certain discovery proceedings. We reverse on direct appeal, reverse on cross-appeal, and remand.

SPEPA was the supplier of electricity for a multi-county district. Included in SPEPA's service area was Jasper County, where Bobbie Read lived. In March of 1977, on a clear day, the wires leading from SPEPA's transformer to Read's house began "shooting out sparks" and "caught on fire." When Read reported the incident, SPEPA dispatched service man Joe Ricketson, who stripped the wires and put clamps on them.

After the transformer fire, Read began experiencing trouble with her electricity. Two (2) or three (3) light bulbs per day would burn out and have to be changed. The eyes on the electric stove burned out two (2) or three (3) times and had to be replaced each time. Numerous appliances burned out, including two (2) refrigerators, two (2) television sets, a dishwasher, a microwave oven, a stereo, two (2) typewriters, and two (2) sewing machines. The electric lights in the home would alternately grow very bright and then very dim. On one (1) occasion a light bulb exploded. Read experienced other similar problems, too numerous to recount here.

Read complained to SPEPA by telephone and by mail, apparently receiving little or no response. In April of 1980, SPEPA employee Jeff McCollum was at the Read house reading the meter when the sewing machine began, in Bobbie Read's words, "shooting fire." Read informed McCollum of the problem. McCollum "checked" the problem and then told Read, "You've got too much current coming in your house. It's a wonder your house hasn't burned down."

The next day SPEPA installed a new transformer. Read experienced few problems with her electricity once the transformer was replaced.

On January 27, 1982, Read filed a civil complaint in the Circuit Court of Jasper County. The complaint included three (3) separate counts, one based on negligence, one based on strict liability, and a third based on res ipsa loquitur. 1

At the conclusion of the trial, Read did not submit an instruction on strict liability. Thus, the case went to the jury on a negligence

Page 919

theory. Read requested, and the trial court gave, an instruction on res ipsa. After the trial court denied SPEPA's motion for a directed verdict, the jury found for Read and awarded her $16,278.45. Reducing the award by $3,000.00 to account for a settlement to Read from the manufacturer of the transformer, the trial court entered judgment in favor of Read for $13,278.45. Subsequently, SPEPA moved for a judgment notwithstanding the verdict, and the trial court granted that motion. From judgment for SPEPA, Read appeals, assigning one error.

I. DID THE TRIAL COURT ERR IN GRANTING SPEPA'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT?

The motion for j.n.o.v. challenges the legal sufficiency of the evidence, just as the motion for directed verdict does. Weems v. American Security Insurance Co., 450 So.2d 431 (Miss.1984). In deciding a motion for j.n.o.v., the trial court must consider all the evidence, along with the reasonable inferences flowing therefrom, in the light most favorable to the non-moving party. If the evidence and inferences thus considered are such that reasonable jurors exercising impartial judgment might reach different conclusions, the motion should be denied. Baker Service Tools v. Buckley, 500 So.2d 970, 972 (Miss.1986); Weems v. American Sec. Ins. Co., 450 So.2d 431, 435 (Miss.1984); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975).

In light of this standard we consider Read's evidence to determine whether it was sufficient to support the verdict. To recover on a negligence theory, Read was required to prove 1) that SPEPA owed a duty to her, 2) that SPEPA breached that duty, 3) that she incurred damages, and 4) that SPEPA's breach was the proximate cause of those damages. Marshall v. The Clinic for Women, P.A., 490 So.2d 861 (Miss.1986).

With regard to duty, Read alleged and SPEPA admitted that SPEPA was in the business of distributing electricity. As a power company, SPEPA, though not an absolute insurer against injury, was under the highest duty of care in distributing electricity. Upton v. Magnolia Electric Power Assoc., 511 So.2d 939 (Miss.1987); City of Starkville v. Harrison, 418 So.2d 51 (Miss.1982); Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973). When a cause of danger is reasonably forseeable caused by and known to the power company, the company must exercise reasonable care to correct or remove the cause of danger. Shepard, 285 So.2d at 729. This standard of care applies whether the injury is to persons or to property. Mississippi Power Co. v. Luter, 336 So.2d 753, 756 (Miss.1976).

In an effort to prove that SPEPA breached this duty, Read put on evidence indicating that excessive power from SPEPA's transformer was flowing into her residence. Most of this evidence was circumstantial. Several witnesses testified that Read's power problems began after the transformer fire in March of 1977, and that they ended when SPEPA replaced the transformer in April of 1980. Other evidence was direct: Read testified that when a SPEPA employee finally did check the problem in 1980, he told her, "You've got too much current coming in your house. It's a wonder your house hasn't burned down." There was also testimony that although Read and other family members complained to SPEPA by mail, by telephone and in person, SPEPA did not correct the problem until 1980. From this evidence the jury could fairly infer that SPEPA's conduct fell below the standard of care required of a distributer of electricity.

Read also relied on the doctrine of res ipsa loquitur to prove breach of duty. Res ipsa loquitur, literally translated "the thing speaks for itself," is simply one form of circumstantial evidence. Dees v. Campbell, 183 So.2d 624 (Miss.1986). The doctrine, which is to be applied cautiously, Phillips v. Hull, No. 55,989 (Miss. Dec. 17, 1986), has three (3) elements:

Page 920

1) the instrumentality causing the damage must be under the exclusive control of the defendant,

2) the occurrence must be such as in the ordinary course of things would not happen if those in control of the instrumentality used proper care, and

3) the occurrence must not be due to any voluntary act on the part of the plaintiff.

Clark v. Vardaman Mfg. Co., 249 Miss. 42, 162 So.2d 857 (1964); Palmer v. Clarksdale Hospital, 206 Miss. 680, 694, 40 So.2d 582, 584 (1949). Where there is enough evidence to make a jury question on each of these elements, then the jury may, but is not bound to, infer negligence on the part of the defendant, and the plaintiff is entitled to an instruction to that effect. Johnson v. Foster, 202 So.2d 520, 524 (Miss.1967).

It has been said that where res ipsa is applicable, a presumption of negligence arises requiring the defendant to come forward with an explanation. Palmer, 206 Miss. at 698, 40 So.2d at 586. This statement is true in the sense that the defendant must come forward with an explanation or else take the risk that the jury may infer negligence. The jury, however, is not bound to make the inference. Johnson, 202 So.2d at 524. Indeed, where the plaintiff raises the inference and the defendant puts on no proof, the jury still may reject the inference and return a verdict for the defendant. Id. Thus, evidence of the elements of res ipsa is more properly described as permitting an inference of negligence, rather than raising a presumption of negligence. Id.

We are of the opinion that Read established a prima facie case of breach of duty even without employing res ipsa. Nevertheless, the case was appropriate for application of the doctrine. The evidence indicated that the transformer, which was under SPEPA's control, caused the damages to Read's appliances and wiring. There was no indication that any action on Read's part caused or contributed to the damages. There was a jury question as to whether this damage would not ordinarily occur in the absence of negligence. Therefore, the trial court correctly granted Read's requested instruction on res ipsa.

In attempting to show that the excessive power from the transformer proximately caused the damage to her wiring and appliances, Read relied in part on the evidence...

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64 practice notes
  • Palmer v. Biloxi Regional Medical Center, Inc., No. 07-CA-58671
    • United States
    • Mississippi Supreme Court
    • 25 Abril 1990
    ...this Court could decline to consider it under authority of the following case decisions. Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987) (party failed to cite authority supportive of its challenge to expert witness; therefore, this Court declined to consider the issue on ......
  • Smith v. Dorsey, No. 07-CA-59273
    • United States
    • United States State Supreme Court of Mississippi
    • 16 Abril 1992
    ...Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); Shive v. State, 507 So.2d 898 (Miss.1987); Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986); Pate v. State, 419 So.2d 1324 There are five (5) assignments of error which we......
  • Dycus v. State, No. 1998-DP-01094-SCT.
    • United States
    • Mississippi Supreme Court
    • 15 Abril 2004
    ...cite any authority as well. See Entergy Miss. Inc. v. Bolden, 854 So.2d 1051, 1062 (Miss.2003); Read v. Southern Pine Elec. Power Assn., 515 So.2d 916, 921 (Miss.1987). It is not absolute, for the failure may be treated as a procedural bar, and while we are under no obligation to review the......
  • Goodson v. State, No. 07-KA-58650
    • United States
    • Mississippi Supreme Court
    • 11 Julio 1990
    ...No. Does he give the Court the first legal authority for what he did claim? No. See, Read v. Southern Pine Electric Power Ass'n., 515 So.2d 916, 921 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986); Wood v. Gulf States Capital Corp., 217 So.2d 257 (Miss.1969); Miss.S.Ct.Rule ......
  • Request a trial to view additional results
64 cases
  • Palmer v. Biloxi Regional Medical Center, Inc., No. 07-CA-58671
    • United States
    • Mississippi Supreme Court
    • 25 Abril 1990
    ...this Court could decline to consider it under authority of the following case decisions. Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987) (party failed to cite authority supportive of its challenge to expert witness; therefore, this Court declined to consider the issue on ......
  • Smith v. Dorsey, No. 07-CA-59273
    • United States
    • United States State Supreme Court of Mississippi
    • 16 Abril 1992
    ...Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); Shive v. State, 507 So.2d 898 (Miss.1987); Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986); Pate v. State, 419 So.2d 1324 There are five (5) assignments of error which we......
  • Dycus v. State, No. 1998-DP-01094-SCT.
    • United States
    • Mississippi Supreme Court
    • 15 Abril 2004
    ...cite any authority as well. See Entergy Miss. Inc. v. Bolden, 854 So.2d 1051, 1062 (Miss.2003); Read v. Southern Pine Elec. Power Assn., 515 So.2d 916, 921 (Miss.1987). It is not absolute, for the failure may be treated as a procedural bar, and while we are under no obligation to review the......
  • Goodson v. State, No. 07-KA-58650
    • United States
    • Mississippi Supreme Court
    • 11 Julio 1990
    ...No. Does he give the Court the first legal authority for what he did claim? No. See, Read v. Southern Pine Electric Power Ass'n., 515 So.2d 916, 921 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986); Wood v. Gulf States Capital Corp., 217 So.2d 257 (Miss.1969); Miss.S.Ct.Rule ......
  • Request a trial to view additional results

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