Upton v. Magnolia Elec. Power Ass'n

• Decision Date: 19 August 1987
• Docket Number: No. 57054,57054
• Parties: Elizabeth F. UPTON, Administratrix of Estate of Jeffery Leonard Faggard, Deceased, v. MAGNOLIA ELECTRIC POWER ASSOCIATION.
• Court: Mississippi Supreme Court

Page 939

511 So.2d 939

Elizabeth F. UPTON, Administratrix of Estate of Jeffery

Leonard Faggard, Deceased, v. MAGNOLIA ELECTRIC POWER ASSOCIATION.

No. 57054.

Supreme Court of Mississippi.

Aug. 19, 1987.

Garland D. Upton, Columbia, for appellant.

J.W. Land, Bryan, Nelson, Allen Schroeder & Randolph, Hattiesburg, for appellee.

Before ROY NOBLE LEE, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This wrongful death action arises out of a fatal electrocution accident as a young high school graduate encountered a power line on his grandmother's property. Though the dead boy's mother has sued the power company, the evidence wholly failed to show that the lines or the electricity were owned by the power company or that it negligently did or failed to do anything that caused the fatal accident.

The trial court granted the power company's motion for a directed verdict. We affirm.

II.

Jeffery Leonard Faggard was born September 29, 1963. On Friday, May 29, 1981, he graduated from Tylertown High School. Five days later he was dead.

Jeff was living with his grandmother, Mrs. J.L. Bullock, in rural Walthall County, Mississippi. On Wednesday afternoon, June 3, 1981, Jeffery decided that he would electrify the fencing around the pen he had built for his deer dogs. He was working alone. At approximately 4:20 p.m. Jeff was found lying on the tin roof of a shed, adjacent to the dog pen, in the backyard. He was bare chested, with his body from the waist up hanging down between two wires that came to the front of the building. Jeff had been electrocuted.

Magnolia Electric Power Association (MEPA) supplied electricity to the Bullock home. The wiring bringing electrical current to the Bullock home is set forth in a configuration or schematic drawing attached hereto as Appendix A. In 1955 the wiring had been originally set up so that electricity was fed from MEPA's nearby transformer ("A") through a pole meter on a pole ("B") in the Bullock's back yard. From this pole meter, electricity was then fed to the Bullock home ("C"), a smoke-house in the back yard (Shed No. 1) and a brooder house (Shed No. 2) in the back yard, upon which Jeff was found dead.

Sometime between the initial installation of the pole meter and Jeff's accident, the meter had been removed and placed on the Bullock home. MEPA had not made this change. When the meter was moved, the wiring at the pole meter, which apparently had theretofore run through breakers in the meter base, was re-routed so that it did not pass through any breakers. This wiring had made it impossible to turn the electricity off going to the buildings in the back yard without turning the transformer off. The wires between which Jeff was found ran from a pole in the back of the smoke-house ("D"), which was fed by wiring from the pole ("B") upon which the meter had been originally installed. And, the rear of the building upon which Jeff was found was used as a support for chicken wire on the side of the dog pen next to the building. The chicken wire extended from the ground to just under and in contact with the flat tin roof of the building, making a ground. This means that the metal roof of the building would complete the grounding circuit if a "hot" wire came in contact with it, creating a very dangerous situation.

The transformer ("A") wire extending to the original meter pole ("B") belonged to MEPA. All of the remaining wiring, including the wiring Jeff fatally encountered, belonged to the Bullocks and had been installed by the Bullocks.

In any event, on April 20, 1984, Jeff's mother, Elizabeth F. Upton, acting as administratrix of his estate, filed a wrongful death claim against MEPA in the Circuit Court of Marion County, Mississippi, alleging that MEPA had been negligent and seeking $5,000,000.00 in damages. Upton charged that Jeff's electrocution was the direct result of improper installation and connection of electric wires by MEPA which were connected directly to the wiring which Jeff came into contact with and caused his death.

In due course the case was transferred to the Circuit Court of Pike County, Mississippi, where trial was held on October 10, 1985.

At trial, Upton first called Hubert Wood, a service man for MEPA, who described the scene of the accident upon his arrival June 3, 1981. When Wood arrived that day, he found that the pole meter had long ago been disconnected and installed on the house, but the meter had been pulled off the house and placed on the ground. He described where the pole meter and meter base had once been located, and how the wiring had been changed so that the electricity to the buildings in the back yard could not be cut off with the breaker located in the meter base. Wood testified that MEPA had not moved the pole meter. Wood explained that the power company owned all the wiring up to the pole meter and that the power company owned the electricity until it passed through the customer's meter. He conceded that MEPA's meter reader reasonably should have noticed the (unauthorized) removal of the pole meter.

Elizabeth Upton then testified about an incident occurring February 11, 1976, which she later argues is indicative of MEPA's negligence. Specifically, she testified that her father and Jeff were pruning fruit trees and she was carrying the cut limbs to a pile to burn. She walked under the power lines that went to the building upon which Jeff was killed, and some of the limbs touched the wires and fire shot everywhere. The lights in their house went out, and they were unable to turn the electricity on by throwing the switches, so they called the power company. Two men from the power company came out, walked around and looked at all the wires and flipped something on the transformer located on a nearby pole and the lights came back on. She testified that was all the employees of the power company did. She later argues that the power company was negligent, via these employees, because they should have recognized a dangerous condition and remedied such condition at that point in time. Elizabeth also testified about Jeff's reason for being in the backyard that afternoon, and that he had no knowledge of electricity other than knowing how to trip the multi-breaker.

O.D. Martin, a neighbor of Mrs. J.L. Bullock, testified that on the afternoon of June 3, 1981, he went to the Bullock home pursuant to a call from Mrs. Bullock to come quickly. Upon his arrival, Martin saw Jeff lying on the tin roof looking as if he were already dead. Martin testified that in an attempt to cut the power off, he pulled the meter off the house power box and placed it on the ground. By this time, another neighbor, Buford Pigott, had arrived and together they cut the wires going to the building upon which Jeff was lying. Pigott also testified, substantiating Martin's testimony.

Upton's last witness was Robert E. Briggs, a consultant electrical engineer, was offered as an expert in electrical engineering. Upton's counsel posed Briggs a hypothetical question regarding whether the hookup to the Bullock home, with the pole meter removed and installed on the house, and with the wiring at the pole meter site route as it was the day of the accident, was a proper service connection. Briggs testified that in his opinion it was not. However, Briggs testified on cross-examination that, if the meter was on the pole and the wiring ran through the breakers in the meter base and the weatherhead¹ atop the meter pole was the only hookup, then the service connection would be normal and proper.

Significantly, Briggs substantiated Wood's previous testimony pertaining to ownership and control of the wiring and electricity. Briggs testified that, typically, the power company owns wiring up to the weatherhead at the service point or, in other words, at the point of delivery, and that the power company owned the electricity until it passed through the customer's meter. Briggs also described safety requirements of the National Electrical Safety Code.

The Defendant's case-in-chief consisted of one witness, Evonne Martin, wife of O.D. Martin, who testified on behalf of Upton. Evonne testified that she followed her husband to the Bullock home on the evening of June 3, 1981, and upon arrival saw Jeff lying between two wires on the tin roof of the building in the back yard.

At the close of all the evidence, MEPA renewed its motion for a directed verdict. See Rule 50, Miss.R.Civ.P. The court asked Upton's attorney what specific act of negligence by the Defendant caused the death of the deceased. Upton's counsel responded that MEPA permitted electricity to flow through lines to the Bullock home, and the power company should have recognized a dangerous condition existed when it visited the Bullock home back in 1976. The Circuit Court sustained MEPA's motion for directed verdict, holding:

[T]he Plaintiff has to prove not only that the Defendant was negligent in some way, but that that negligence, if any, proximately caused or contributed to the injury producing the death of this young man. The evidence indicates that there was by somebody--I don't know who, but by somebody there was apparently an intentional shorting of the meter base by connecting the wires to the source lugs and that there was no meter in that meter base out at the pole. And then the power ran to the meter box at the house, where there was a meter. Now, the evidence--if that was negligence there has not been one iota of evidence introduced to show that that negligence, if any, caused or contributed to in any way the untimely death of Jeffrey Leonard Faggard. It's true that it was apparently electricity that caused his death, and it's true that electricity was supplied to the home by the Magnolia Electric Power Association, but their responsibility ends somewhere, and by law it ends once that power goes through the meter. It becomes the customer's electricity, and there is no way that I know of that...