Read v. Southern Pine Elec. Power Ass'n

• Decision Date: 12 November 1987
• Docket Number: No. 57094,57094
• Citation: 515 So.2d 916
• Parties: Bobbie READ v. SOUTHERN PINE ELECTRIC POWER ASSOCIATION.
• Court: Mississippi Supreme Court

Page 916

515 So.2d 916

Bobbie READ v. SOUTHERN PINE ELECTRIC POWER ASSOCIATION.

No. 57094.

Supreme Court of Mississippi.

Nov. 12, 1987.

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 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:

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 that the power problems began after the transformer fire and ended when the transformer was replaced. Moreover, an electrician called by Read as an expert witness testified that, in his opinion, the damage to Read's wiring and appliances was caused by excessive electrical power coming into the residence through the power lines. This was sufficient evidence on which to submit the question of proximate cause to the jury.

SPEPA argues on appeal as it did below that the damages could have been caused by lightening and that the dimming of lights could have been caused by a short in an appliance. The evidence on which SPEPA bases this argument is the testimony, elicited from Read's expert on cross-examination, that lightening and a short were possible causes of the problems Read experienced. SPEPA cites Prosser on...