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TALMADGE STUBLLEFIELD v. JESCO

SEPTEMBER 26, 1984

TALMADGE STUBLLEFIELD
v.
JESCO, INC., et al.



EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Lee County wherein the appellant, Talmadge Stubblefield, was awarded a jury verdict of $1.2 million dollars. That jury had determined that the negligence of the appellee, Jesco, Inc., was the proximate cause of injuries sustained by Stubblefield in a grain mill explosion in Tupelo on December 22, 1977. The circuit judge sustained a motion by Jesco to enter a judgment notwithstanding the verdict and Stubblefield now appeals the granting of that motion. In addition, Jesco has cross-appealed and assigns the following error:

(1) The Court erred in admitting into evidence the testimony of the witness John Sims.

 (2) The verdict of the jury is contrary to the overwhelming weight of the evidence.

 (3) The Court erred in not granting a new trial on the issue of damages when the amount of damages awarded by the jury was so excessive as to evince bias, passion and prejudice on the part of the jury.

 For the reasons set forth below, we reverse the granting of the judgment notwithstanding the verdict and affirm on cross-appeal.

 THE FACTS

 A substantial portion of the evidence presented at trial is uncontradicted. The design and operation of the Sunshine Grain Mill, the nature and extent of Stubblefield's injuries, and the general nature of the work Jesco was performing on the day of the explosion are without dispute. As to the remaining operative facts our standard of review when a judgment notwithstanding the verdict has been entered requires that we view the evidence most favorable to Stubblefield and grant him the benefit of all favorable inferences which may reasonably be drawn from the evidence.

 Talmadge Stubblefield worked as an expander operator for Sunshine Grain mills since 1969. Sunshine manufactured dried, processed dog food. The manufacturing complex consisted of a four story concrete mill building, a number of smaller metal buildings, and several grain elevators used to store wheat, corn and soybeans. Conveyor belts connected the elevators with the fourth floor of the mill building. Once grain was transported by means of the

 conveyor belts to the fourth floor it was there subjected to a system of hammermills which ground or pulverized the grain to a fine dust. The third floor of the building consisted primarily of the sides of large grain bins through which the pulverized grain dropped and where it was stored until it was removed on the second floor of the building at the bottom of these bins. From there the grain passed through a series of screens designed to separate it by size. Grain was then transported by means of auger screws to the first floor where it was processed through the expanders, dried and packaged, then loaded for shipping. Each floor of the building was connected by a stairwell and a manlift. Talmadge Stubblefield operated a grain expander on the first floor of the mill building. The expander room was located in the middle of the first floor. Sunshine Mill employees were stationed only on the first floor of the building.

 As an expander operator, Stubblefield earned $12,821 in 1977. At the time of the explosion he was married and had two children. Prior to his injuries he enjoyed fishing, hunting, gardening and tinkering with electronics.

 On December 22, 1977 Talmadge Stubblefield's life was permanently and tragically changed as a result of an explosion and fire at the mill. It is undisputed that on the date of the explosion there was in effect a City of Tupelo ordinance, designed as a fire prevention code, which regulated activities such as welding. It is this code which formed the basis of Stubblefield's allegations of negligence by Jesco that proximately caused his injury. Jesco had been hired as an independent contractor to make certain modifications to the mill. These modifications necessarily involved welding and cutting, both with an arc welder and acetylene torches.

 Talmadge Stubblefield arrived at work at approximately 6:45 the morning of the explosion. At 7:00 o'clock he relieved the night shift, and between 7:30 and 7:45 his foreman asked him to go with Johnny Whitehead to clean out the wheat bin. Stubblefield and Whitehead went to the fourth floor of the grain mill building, the floor of which served as the top of the grain storage bins. Located in the floor were manhole covers which opened directly into the grain storage bins. Stubblefield and Whitehead climbed down into the wheat bin with a drop light and began to scrape clumps of wheat dust from the walls of the bin. These clumps fell to the bottom of the bin which was located on the second floor. Stubblefield testified that he and Whitehead cleaned the bin to the

 satisfaction of the Jesco welders. The purpose of cleaning out the bin was so that the Jesco employees could modify the grain bins by welding an additional grain chute onto the bottom of them at the second floor. Because he and Whitehead knew that the Jesco welders would have to cut a hole in the bottom of the bin in order to perform their task, Stubblefield and Whitehead decided to remove the clumps of grain which had fallen to the bottom of the bin through that hole.

 Once Stubblefield and Whitehead had finished cleaning the walls of the bin they returned to the second floor and watched the Jesco welders use an acetylene torch to cut three sides of a rectangle in the bottom of the bin. After cutting the three sides of the rectangle, the Jesco workers used a crowbar to bend the metal along the fourth side so that they could reach in and remove the chunks of grain. All of the large chunks of grain were removed from the bottom of the bin. Stubblefield and Whitehead then went back to the fourth floor, gathered their tools and used an air hose to blow the grain dust off of them. Stubblefield then returned to the control panel in the expander control room. Stubblefield testified that while he watched the welder cut the hole in the bottom of the wheat bin he did not see or smell any smoke. After the welding was completed, Tommy May, a Jesco welder, told Stubblefield to tell Stubblefield's foreman to turn the wheat line on.

 As Stubblefield stood facing the control panel, he heard a noise from behind. He testified that after hearing the noise he came to three months later in the intensive care unit in a hospital in Greenville. The time between the completion of the welding and the explosion is uncertain; however, it was not less than fifteen minutes nor more than an hour. Somewhere between three hundred fifty pounds to six tons of wheat had been run through the wheat bin before the explosion.

 Stubblefield testified that he had seen the Jesco welders set up their equipment and begin welding. He stated that the welders had not swept the area in a circumference of thirty-five feet from the point of the welding. Nor had they wet down the area or the wheat bin or posted a fire guard. All of these omissions were in violation of the Tupelo City ordinance regulating welding.

 The force of the explosion was so great that it literally destroyed the four story grain mill building. Frank Stubblefield, plant superintendent, was in the plant

 parking lot at the time of the explosion. He testified that he heard two explosions. Simultaneously he saw the third and fourth floor walls of the grain mill building blow out. After the explosion he toured the building and noted that the sheet metal walls separating the wheat bin on which the Jesco workers had been welding from a corn bin was buckled in towards the corn bin. The bins were arranged in groups of four in the shape of a square. Each bin represented a quadrant in the square. Although the bins were separated by sheet metal walls, there was an opening at the top of each of them which allowed ventilation or circulation from one bin to another. Frank Stubblefield testified that the corn bin was completely blown out and that the manhole covers on the fourth floor to these bins were blown off. The corn bins had suffered greater damage than the wheat bins and the bulk of the damage done to the bins was on the third floor.

 Both Frank Stubblefield and Willie McClendan, a maintenance foreman for Sunshine Mills, testified that the morning of the explosion they had checked the bonding wires used in electrical junction boxes throughout the plant and found that these wires, were all intact. After the explosion McClendan and Stubblefield toured the plant and re-examined the wires. They performed an ohm meter test which indicated that a current was still running through these wires, negating the possibility that the wires were unconnected at the time of the explosion.

 Talmadge Stubblefield's injuries, disfigurement and the attendant pain he continues to suffer are the manifestations of this great human tragedy. Stubblefield was burned on up to 60% of his body, including his face, neck, arms, chest, back and legs. Indeed, Dr. Robert Love, a plastic surgeon at the Greenville Burn Unit who has continued to treat Stubblefield since the time of his injuries, testified that Stubblefield was the most severely injured patient he had ever seen live. When Stubblefield arrived at the hospital he was in shock but conscious. He lost consciousness after several days and remained unconscious for a period of thirty days. Because of the nature of his injuries and in order to prevent infection, Stubblefield was given painful baths twice a day. These baths and a treatment known as debridement, the removal of dead skin with either a surgical sponge or by peeling it off, were so painful that it caused Stubblefield to pass out. Stubblefield received this treatment at least twice a day during his three hundred day stay in the hospital. He has received numerous grafting operations, a tracheostomy, perineal urethroplasty and urethal

 fistulectomy. Dr. Love indicated that the skin grafts were as painful as a number of Stubblefield's burns because they required that skin be removed from portions of his body where it was left, thereby creating a new open sore. Stubblefield suffered from what was known as swan neck deformity and burn scar contractures. This resulted in his neck being drawn down to his chin. The treatment for this condition is to pull his neck back and tear loose the skin under the neck which pulls his skin down. This procedure occurred twice a day while he was in the hospital. Stubblefield has also permanently lost all of his sweat glands, save those under his arms. Because of this Stubblefield is not able to tolerate heat very well and tires easily. Dr. Love testified that Stubblefield would not be able to work any job more than approximately three hours at a time, and certainly no job where he was subject to getting hot. Stubblefield has lost all ability for sexual performance, and the ability to dispose of bodily waste in a normal fashion. He is unable to sleep, is easily frightened by sudden noises and flashes, still in constant pain, subject to constant itching, and must wear Jobst gloves in order to retard scar tissue on his hands. He has been hospitalized ten times since the explosion and undergone twenty separate operations. In addition, Dr. Love testified that he would probably continue to treat Stubblefield for an additional five years and that he could easily have medical bills of $1,000.00 per year. Dr. Love was also of the opinion that there was a good possibility that Stubblefield would be subjected to future hospitalization. In his opinion Stubblefield had a permanent disability to 75% of his body. Stubblefield's medical bills prior to trial, totaled $126,690.30.

 Margaret Allen, a registered nurse and former employee of the Greenville Burn Unit, testified that she was working at the burn unit during the time Talmadge Stubblefield was a patient there. She further corroborated the testimony of Stubblefield and Dr. Love regarding the extent of his injuries.

 Dr. Jan T. Goff, a psychiatrist, testified that he had seen Talmadge Stubblefield in a professional capacity for approximately seven months. He stated that he was suffering from depression and fear of a fire or explosion. He had a complete loss of sexual appetite, he overate, suffered from insomnia, had nightmares and is at times suicidal. He further testified that depression is brought on by what is known as a stresser. The stresser in this case was the explosion and heinous injuries suffered by Stubblefield. In his opinion, this was at or near the

 highest level of stresser which he described as being catastrophic. He stated that Stubblefield's condition required psychiatric treatment but that it was difficult to prescribe the anti-depressant drugs that Stubblefield needed because these drugs affected his ability to tolerate heat and subjected him to heat strokes because of his inability to sweat. He further testified that during the period of time he had been seeing Stubblefield he reflected an increased suspectibility to irratibility. He stated that in his opinion his prognosis was that Stubblefield's condition would worsen. He indicated that Stubblefield's condition was deteriorating and would continue to do so. He stated that he was going to require further psychiatric treatment and medicines which would cost on an average of $5,000 per year.

 Two employees of Jesco were called to further substantiate Stubblefield's claim that it was Jesco's negligence which caused the explosion and his injuries.

 Gray Megginson, a Vice-President of Jesco, Inc., testified that although Jesco required some special experience of welders before allowing them to work in a grain mill, he did not require proof of this special experience if the welders identified themselves as welders. Megginson admitted that the Jesco supervisor was not present at the time of the explosion as he was supervising two jobs at once and was then at the second job in Red Bay, Alabama. Megginson was unaware of the City of Tupelo ordinance regulating safety procedures for welding conducted within the city. He stated he did not know if the Jesco welders working at the Sunshine Mills plant were aware of the Tupelo ordinance.

 Larry Hamilton, the Jesco foreman in charge of the welders at the time of the explosion, explained the procedure for cutting holes in the storage bins and then welding chutes to these holes through which the grain was to fall to an auger screw trough. Hamilton testified that his men swept the area around the wheat bin but not for the required distance of thirty-five feet. Hamilton also admitted that his men had not wet down the area, used asbestos shields to prevent the spread of hot slag, nor had they set up a fire watch inside the bin for the purpose of detecting hazardous errant slag. Hamilton was not aware of the National Fire Safety Code, the Standard Fire Prevention Code or the Tupelo ordinance which required that these measures be taken prior to welding in a grain mill. Hamilton never looked inside the bin nor had he given his welders any special instructions concerning welding

 in a grain mill. He testified that the only employees on or above the second floor of the grain mill building the morning of the explosion were Johnny Whitehead and Talmadge Stubblefield. Hamilton admitted that he had not inspected the wheat bin after Whitehead and Stubblefield finished cleaning it. He further testified that Jerry Thompson, a Jesco employee, was using a cutting torch just before the explosion and that Thompson was not a certified welder. He did however, deny that Thompson was doing anything unsafe at the time he was using the cutting torch. Hamilton stated that following the Jesco workers completion of the job he inspected the welding and saw no flaws or "blow throughs." Once Sunshine Mills began running wheat through the bin again, he stated that he lifted the gate or door from the wheat bin to the chute his men had just attached ...


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