Jesco, Inc. v. Whitehead

For the Court:

This is an appeal from the Circuit Court of Lee County wherein the appellee, Gerald Whitehead, was awarded damages resulting from personal injuries received on December 22, 1977 when an explosion occurred in a grain mill operated by Sunshine Mills, Inc. (hereinafter referred to as Sunshine). Jesco, Inc. was an independent contractor performing work which required, among other things, welding on a grain conveyor and grain bin.

We reverse and remand for a new trial.

During the plaintiff’s case in chief the plaintiff attempted to prove through the testimony of an engineering expert, Phillip Lawson, that Jesco caused the explosion. The evidence presented by the plaintiff is largely uncontradicted except for the testimony of the experts. On December 22, 1977, an explosion occurred in the mill building operated by Sunshine. The four-story concrete building was being used by Sunshine to manufacture dog food at the time of the explosion. The first story of the building contained the main control panel for the production equipment. Also on the first floor of the mill building were the expander units, the weigh hopper for the mixer, and screw conveyors which feed grain into the weigh hopper. At the time of the explosion the conveyor lines had been turned on and were running. Plaintiff, Gerald Whitehead, was an employee of Sunshine. He was an expander operator and was approximately three or four feet away from the scales and mixing controls on the first floor at the time of the explosion.

For many years Jesco, a general contractor, had assisted Sunshine in building additions and making assorted alterations to the plant. On the day of the explosion Jesco employees were performing two separate jobs on the second floor of the building. Tommy May and Roger Hawkins had been assigned the task of building (cutting and welding) term spouts coming off the hopper of the grain bins. They had finished their work on two of the bins, the last having been completed at least thirty minutes before the explosion. Both bins were in full operation and grain had already refilled the bins above the area where the work had been performed. Jimmy Rick-man and Jerry Thompson were assembling a screw conveyor in the middle of the second floor area at the time of the explosion. In the process of assembling the screw conveyor, Jerry Thompson had used the acetylene cutting torch to cut two bolt holes.

Phillip Lawson, the plaintiffs industrial engineer and expert witness, inspected the explosion site five days after the explosion occurred. On the second floor, twelve to fifteen feet from the area where Thompson and Rickman were working on the screw conveyor, Lawson found a burned hole in an acetylene hose. On top of the hose was a piece of sheet metal. Based on the fact that he found the burned hose under the sheet metal, Lawson theorized: (a) that in the process of cutting the bolt holes it was necessary for Jerry Thompson to pull the hose taut; (b) that when he pulled the hose against the adjacent metal, the edge of the metal cut the hose; (c) that acetylene gas leaked from the hole and spewed directly into dust assumed to be lying on the floor blowing the dust into a thick cloud; (d) that the acetylene gas and dust cloud were ignited by an unknown source creating a small explosion in the southwest corner twelve to fifteen feet from Rickman and Thompson; (e) that the small explosion shook the entire building, stirring up grain dust; (f) that the flame front from the first explosion ignited the stirred-up dust cloud on the east side of the second floor, creating the second big explosion which caused the major damage and the burns suffered by the plaintiff.

The theory testified to by Phillip Lawson, Whitehead’s expert, was sharply contradicted by Jesco’s witnesses who were on the second floor when the explosion occurred. They .testified that the metal plates were not on the hose at the time of the explosion and that the explosion and fire did not originate on the second floor. They further testified that it was not necessary to pull the hose taut in order for them to perform their welding and cutting operations.

There was much evidence presented by Whitehead that Jesco had violated the Standard Fire Prevention Ordinance adopted by the City of Tupelo, which ordinance contained provisions directed toward the prevention of dust explosions. Whitehead charged and proved, inter alia, that Jesco had violated the City Ordinance by performing welding and cutting operations within thirty-five feet of combustible materials exposed to the operation; failed to have a fire watcher to watch for fires during the job and for thirty minutes after the welding and cutting operations were finished; welding or cutting in or near rooms or locations where flammable dust was present; and performing welding or cutting on a container which had contained flammable solids without cleaning, inert-ing, or purging same.

The question presented in this case is whether Whitehead proved by a preponderance of the evidence that Jesco’s negligence proximately contributed to the explosion and Whitehead’s resulting injuries and damages. The jury found that it did.

However, after a meticulous combing and studying of this record and the briefs of able counsel, we are of the opinion that the verdict is contrary to the overwhelming weight of the evidence and that the judgment in favor of Whitehead against Jesco should be and is hereby set aside and a new trial ordered. In doing so, we have considered the cases cited by appellant, Jesco, urging that the case be reversed and rendered as well as those cited by appellee, Whitehead, urging that the case be affirmed. In our opinion justice demands another trial.

In remanding the case, we feel it is necessary to comment on several of appellant’s assignments of error.

I.

The first question is whether the trial court erred in not instructing the jury that they must rely on the evidence presented by the plaintiff’s expert witness, Phillip Lawson, as to the cause of the explosion if the plaintiff was to recover.

The primary thrust of Whitehead’s case was that the hole in the acetylene hose line was caused by Jesco’s employees’ negligence and was the proximate cause of the explosion. However, it had been pled and there was presented to the jury throughout the case evidence that Jesco had violated several sections of the Ordinance of the City of Tupelo dealing with welding and cutting operations. Because of this evidence, we are unable to say that the trial court erred in refusing to grant Jesco’s instruction DJ9A and in granting Whitehead’s instruction P7 .

We do not find it necessary to comment on the testimony of Whitehead’s other expert, Sims, offered on rebuttal, as this will, in all probability not occur again upon retrial.

II.

It was error for Whitehead’s attorney to tell the jury in closing argument that all sums paid by the Workmen’s Compensation insuror must be repaid before the plaintiff could receive anything out of any sum awarded by them. See Merchants Co. v. Hutchinson, 199 So.2d 813 (Miss.1967).

III.

The court erred in granting the plaintiff an instruction, over defendant’s objection, which permitted the plaintiff Whitehead to recover for loss of future earnings without discounting the loss to its present worth.

Instruction P19 reads in pertinent part: Should your verdict be for Gerald Whitehead, you may consider the following factors in determining the amount of damages to be awarded as may be shown by a preponderance of the evidence: ... (6) Any future disability that is reasonably certain to occur, if any, its duration and its affect, if any, on Gerald Whitehead’s future earning capacity. In arriving at the amount of your award, if any, for any loss of future earnings, you should consider what Gerald Whitehead’s health, physical ability, age and earning power or capacity were before the injury and the effect of Gerald Whitehead’s injuries, if any, upon them.

Appellant contends it was error to grant said instruction without advising the jury that any award for loss of future earning should be discounted to its present net cash value. Cf. Sheffield v. Sheffield, 405 So.2d 1314 (Miss.1981). We agree.

The appellee admits it has long been the practice in this State to reduce lost future earnings to present net value; however, he asserts this method fails to account for inflation. He supports his contention by citing a Pennsylvania case, yet notes such is not binding in Mississippi.

The general rule as found in 22 Am. Jur.2d Damages section 96 states:

Thus, if the court, for this element of damages, awards a sum of money equal to the total decrease in plaintiff’s earning capacity without reduction to present worth, it is ignoring the fact that money has the power to earn money. Damages should therefore be reduced to reflect only the present value of the plaintiff’s decreased earning capacity. The plaintiff is not entitled to a sum of money, the interest on which compensates him for his decreased earning capacity, because this would leave the principal amount intact, resulting in over-compensation. The amount awarded should consider the use of both the principal and the interest as compensating for the decreased earning capacity. The goal of the personal injury award for this element of damages should be to give the plaintiff that sum of money which, if invested in reasonably safe investments, will return to the plaintiff the amount of the decrease in his earning capacity over the period of the injury if not permanent, .or, if permanent, over the period of his life (or, according to some courts, work) expectancy prior to the injury and—at the termination of that period—be reduced to no value.

With regard to appellee’s other contentions under this assignment, it was not necessary for Jesco to tender its own instruction after its specific objection to instruction P19 was overruled, nor did the granting of said instruction constitute harmless error as evidenced by the size of the award.

It is not necessary for us to address the remaining assignments of error in view of our holding that the case must be reversed and remanded for a new trial.

ON CROSS-APPEAL

The appellee, Whitehead, contends on cross-appeal that the trial court erred in refusing to instruct the jury that they could award punitive damages in addition to actual damages.

We find no merit in this contention. There is not a scintilla of evidence in this record that would support an award • of punitive damages.

For the above stated reasons, this cause is reversed and remanded for a new trial on direct appeal and affirmed on cross-appeal.

REVERSED AND REMANDED FOR A NEW TRIAL ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and PRATHER and ROBERTSON, JJ., concur.

ROBERTSON, J., specially concurs.

BOWLING, DAN M. LEE and SULLIVAN, JJ., dissent.

HAWKINS, J., not participating.

. The court instructs the jury that you cannot return a verdict against the defendant, Jesco, Inc., on the basis of their actions in connection with welding on the corn bin and wheat bin.

. The court instructs the jury that at the time of the explosion at Sunshine Mills, the City of Tupelo had adopted by ordinance a Standard Fire Prevention Code, which contained provisions for the prevention of dust explosions, and also prescribed safety procedures for welding operations.

If you believe from a preponderance of the evidence presented in this case, that the defendant, Jesco, Inc., in conducting its welding operations at Sunshine Mills, violated the Standard Fire Prevention Code, by performing welding or cutting operations within 35 feet of combustible material exposed to the operation; failing to have a fire watcher to watch for fires during the job and at least 30 minutes after the welding or cutting operation is finished; welding or cutting in or near rooms or location where flammable dust is present; performing welding or cutting on a container which has contained flammable solids without cleaning, inerting, or purging same. And if you believe the aforesaid violations of this Code is such there were proximately caused or contributed to the injuries sustained by Gerald Whitehead, then the defendant Jesco, Inc., is guilty of actionable negligence and you shall so find.