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CLYTEE NICHOLS, MARY JOE HEARD, AND LARRY NICHOLS v. WESTERN AUTO SUPPLY CO.

SEPTEMBER 18, 1985

CLYTEE NICHOLS, MARY JOE HEARD, AND LARRY NICHOLS
v.
WESTERN AUTO SUPPLY CO., INC., M. & W. BUTANE GAS CO., INC., AND EAGLE RANGE & MANUFACTURING CO., INC.



BEFORE ROY NOBLE LEE, ROBERTSON and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Clytee Nichols, Mary Joe Nichols Heard, and Larry Nichols filed suit in the Circuit Court of Monroe County, Honorable Neal B. Biggers, presiding, against Western Auto Supply Company, Inc. [Western Auto], Eagle Range and Manufacturing Company, Inc. [Eagle Range], and M & W Butane Gas Company of Amory, for damages resulting from the wrongful death of their husband and father, Clarence Nichols. The complaint was based on strict liability in tort as to Western Auto and Eagle Range and negligent installation of a gas stove on the part of M & W Butane Gas Company. At the conclusion of all the evidence, the lower court entered a directed verdict in favor of M & W Butane Gas Company and the case was submitted to the jury on the issue of strict liability in tort. The jury returned a verdict in favor of the defendants and the Nichols have appealed here, assigning the following errors in the trial below:

(1) The lower court erred in instructing the jury on assumption of risk without instructing it on contributory negligence pursuant to the Braswell rule.

 (2) The lower court erred in not instructing the jury on comparative negligence, while instructing them on assumption of the risk.

 In April, 1979, Larry Nichols, son of the deceased, bought a new gas stove from Western Auto in Fulton, Mississippi. The stove was manufactured by Eagle Range and Manufacturing Company of Belleville, Illinois, and was installed in the Nichols home by M & W Butane Gas Company.

 Several weeks after installation of the stove, members of the Nichols family began to notice shocks and tingling sensations resulting when they came in contact with a water faucet located in the carport of the Larry Nichols home. The wife experienced shocks while working in a flower bed along the outside edge of the house. They became more frequent and worse as time elapsed.

 On July 26, 1979, Larry Nichols attempted to use the carport faucet and, as he was turning it off, he was" badly shocked. "It was so highly energized that he had to use a rubber hose for insulation before turning the faucet. Larry Nichols instructed his wife to inform Clarence Nichols of the dangerous situation and requested that he do something about it. Subsequently, on the same day, two telephone company employees were attempting to install an extra phone line underneath the house when one of them received a shock so strong that they reported to Clarence Nichols, who was present, that they would not complete the job until he had turned off the main power switch, which was done.

 About 5:30 that evening, after Mrs. Larry Nichols had informed him that the water pipes were" hot ", Clarence Nichols decided to crawl underneath the house and look at the pipes and wiring. Clarence Nichols was a builder who had extensive experience in construction and wiring, and had built and wired the Larry Nichols house. While under the house, he told Larry Nichols he was unable to see what was causing the shocks and told him not to come under the house because the pipes were" hot. "When he attempted to crawl out from under the house, Clarence Nichols' back came in contact with one of the pipes and he was electrocuted. Larry Nichols finally was able to separate him from the pipe and pull him out from under the house, but, after being rushed to the hospital, Clarence Nichols was pronounced dead. After the accident, a pinched (frayed) wire was found on the stove and was repaired.

 Expert testimony shows without contradiction that the house was improperly wired in that the wiring contained no grounding. M & W Butane Gas Company installed the gas stove and connected the stove to the gas supply pipes. However, it did not do the electrical work in the stove installation and that work was performed by Clarence Nichols. He used a two-prong rather than a three-prong extension cord to plug in the stove. Eagle Range was required by government and industry regulations to use a three-prong plug on the stove for safety reasons, which was done. The expert testimony was uncontradicted that using a two-prong extension cord was improper because it also eliminated adequate grounding and that, if the wiring in the house had been proper and if a proper three-prong extension cord had been used by Clarence Nichols, the accident would not have happened.

 I. - II.

 Appellants contend (1) that the lower court erred in not instructing the jury on contributory/comparative negligence. There is no merit in this contention for the

 reason that appellants failed to request a contributory/ comparative negligence instruction and the lower court may not be put in error for not granting such an instruction of its own volition. Medley v. Carter, 234 So.2d 334 (Miss. 1970); Pulliam v. Ott, 246 Miss. 739, 150 So.2d 143 (1963); Lindsey Wagon & Co. v. Nix, 108 Miss. 814 67 So. 459 (1915). See also Newell v. State, 308 So. 2d 71 (Miss. 1975), a criminal case, where the Court held that a trial judge shall not be put in error for his failure to instruct on any point of law unless specifically requested in writing to do so.

 The appellees did request a contributory/comparative instruction. Assuming arguendo, but not deciding, that the instruction was in proper form, the appellants can derive no help or benefit from the lower court's refusal of the instruction. They cannot complain on appeal that the lower court erred in refusing an instruction requested by the appellees. Munford, Inc. v. Peterson, 368 So.2d 213 (Miss. 1979).

 Appellants contend (2) that the lower court erred in instructing the jury on assumption of risk by the deceased, and, again, that contributory negligence should have been submitted to the ...


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