Mississippi Tank Co. v. Roan

182 So. 2d 582, 254 Miss. 671, 1966 Miss. LEXIS 1566
CourtMississippi Supreme Court
DecidedJanuary 31, 1966
DocketNo. 43655
StatusPublished
Cited by1 cases

This text of 182 So. 2d 582 (Mississippi Tank Co. v. Roan) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi Tank Co. v. Roan, 182 So. 2d 582, 254 Miss. 671, 1966 Miss. LEXIS 1566 (Mich. 1966).

Opinion

JONES, Justice.

This is an appeal from the Circuit Court of Wayne County where appellee recovered a large judgment against Mississippi Tank Company, Inc., appellant, in an action of tort. It was claimed that both the appellant and Magnolia Propane Gas Company, Inc. were liable to appellee for the burning of his house and its contents and personal injuries received by him. The declaration alleged that Magnolia Propane. Gas Company, Inc. installed for appellee a butane gas tank which it had purchased from the appellant; that the tank had a hole in it permitting gas to escape; that the gas travelled underground along the pipe extending from the tank to1 the house and accumulated under the house, as a result of which the house, with its contents, was totally destroyed by fire when the gas exploded. The jury found that the Magnolia Propane Gas Company, Inc. was not negligent, but rendered a judgment against appellant for $62,300 on the theory that it had negligently manufactured and sold said tank. There is no appeal as to Magnolia Propane Gas Company, Inc., and the case is here before us as between the appellant and ap-pellee only.

The record is replete with errors, and we are therefore reversing the case and remanding for a new trial. Because of the numerous errors, we are limiting this opinion to those errors herein discussed.

Appellant manufactured the tank which Magnolia, a retailer, purchaser and later resold and installed for appellee. The tank had been in place for approximately one year when the gas explosion occurred at night on or about December 6, 1963. According to the testimony of appellee, there was a considerable sum of money in the house. Appellee had gotten out of the house into a safe place. In an attempt to return for the money while the house was burning, he fell while trying to enter through a window and was personally injured. The suit seeks to recover for destruction of the house, its contents, including the money, and for personal injuries received by the ap-pellee.

Assuming for the purpose of this opinion that appellee’s proof was sufficient to withstand a motion for a peremptory, with the above brief statement of facts, we pass to those matters which we find constitute error in the trial.

The instruction for plaintiff appearing on page 758 of the record told the jury that if they believed the defendants, Magnolia Propane Gas Company, Inc. or Mississippi Tank Company, Inc., or either of them, was guilty of negligence it was their sworn duty to return a verdict for the plaintiff and assess his damages. The jury could have inferred from this instruction that if either of the defendants was guilty of negligence, both were liable.

The declaration herein undertook to assert numerous acts of appellant constituting negligence resulting in the fire. The court gave an instruction for the plaintiff, appearing on page 759 of the record, reciting that butane gas is a dangerous agency, and the defendants were required to use the highest degree of care and precaution suggested by experience and the known danger of the escape of gas. The jury was further instructed that if they believed from the evidence that such high degree of care and precaution was not used by said defendants, and as the consequence thereof the plaintiff was injured and his property destroyed, it ■ was their duty to return a verdict for' the plaintiff. This instruction gave the jury no guide as to what would constitute negligence as shown by the evidence, if any. It left the jury wide-open to draw upon its imagination to find that the defendants were guilty of negligence regard[584]*584less of whether the facts upon which the jury based its verdict were, as a matter of law, acts of negligence. It also authorized a finding of liability for the personal injuries without necessary qualification, as hereafter shown.

The instruction appearing on page 760 is subject to this same criticism, in that it instructs the jury “if they believe from the evidence the defendants were negligent,” and fails to give any guide as to what constitutes negligence.

The instruction on page 763 instructs the jury that if they should find for the plaintiff, it was their duty to render a verdict in such sum as would amply compensate the plaintiff for all of his losses as the result of his personal injuries. This instruction was erroneous because it required the jury to give damages for personal injuries if it found the house was negligently burned, regardless of whether ap-pellee exercised proper care in re-entering the house.

The instruction appearing on page 764 of the record instructs the jury that if they should find for the plaintiff, it would be their duty to fix the amount of the verdict at a sum which would be fair and reasonable compensation for all damages sustained by the plaintiff as shown by the testimony, if any, as a direct and proximate result'of the negligence of the defendants.

The instructions should have delineated those matters for which, if any, the plaintiff was entitled to recover. This is particularly true in view of the fact that on the trial of the case the plaintiff was permitted to testify that the destruction of his house resulted in the loss of association with friends and relatives; that it was the “old home place” and that he was coming back to be with his sisters, his home-folks; and that he had worked all his years to get back there; that it was just a place he loved to be, and having to leave it changed his whole plans, and he had lost the convenience and comfort of his home; that it was something he had built just like he wanted and there was comfort there, as he worked in the daytime and rested at night. (He cherished it for friends to come to see him and to enjoy.) He was allowed to testify that he suffered mental anguish because of the loss of the house, which together with sentimental values is incompetent. 25 C.J.S. Damages § 68 at 555 (1941).

When you consider this evidence as having been in the presence of the jury, and the jury receiving an instruction that they might consider all damages, the error in the instruction abovementioned is manifest.

Plaintiff established, or undertook to establish, the damages to his house by saying that the value of the house before the fire was $35,000 and after the fire was nil.

The rules as to the proof of damages for the destruction of buildings are set out in 25 C.J.S. Damages § 85a at 608 (1941). It will be seen that there are various rules adopted by the different states. Our state has heretofore, insofar as urban property is concerned, adopted the before and after rule of the value of the entire property. In Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250 (1945), our Court said:

In case of total and tortious destruction of a house by fire, the basis for computing damage to the owner is a comparison of the value of the whole property before and after the fire. 15 Am.Jur., Damages, sec. 109, p. 517; 25 C.J.S. Damages sec. 85, p. 608. This is and should be the general rule. Admittedly cases arise in which other factors are found which must be taken into account. Conceivably the lot may be worth more without the structure than with it. See Kaw Feed & Coal Co. v. Atchison, T. & S. F. R. Co., 120 Mo.App. 498, 107 S.W. 1034; Murphy v. City of Fond Du Lac, 23 Wis. 365, 99 Am.Dec. 181. Again the house may be an inconsequential item in the total valuation of a large tract on which it [585]*585is located so that the value of the entire property is not substantially changed, yet there is damage in its loss.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bynum v. Mandrel Industries, Inc.
241 So. 2d 629 (Mississippi Supreme Court, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
182 So. 2d 582, 254 Miss. 671, 1966 Miss. LEXIS 1566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-tank-co-v-roan-miss-1966.