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THE MARYLAND CASUALTY COMPANY v. THE CITY OF JACKSON

AUGUST 27, 1986

THE MARYLAND CASUALTY COMPANY
v.
THE CITY OF JACKSON, MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Frozen pipes and either uninterrupted or unauthorizedly restored water service that should have been discontinued combined to produce extensive water damage in an unoccupied Jackson dwelling and have generated this subrogation action against the City of Jackson.

 Following a jury verdict for the City, the insurer subrogee appeals raising several procedural points as well as a question regarding the nature and extent of the City's duty in the premises. Finding no reversible error, we affirm.

 II.

 George Carr was an insured of The Maryland Casualty Company under a homeowner's insurance policy issued to cover a dwelling at 368 Queen Juliana Lane, Jackson, Mississippi. The policy was in effect in 1981 and 1982. In June of 1981 Carr moved out of the house and began trying to sell it. In August of 1981 Carr telephoned the City of Jackson's Water and Sewer Business Administration Office and requested that water service be discontinued at 368 Queen Juliana Lane. As a result of this call, it appears that the City issued a work order to make the water cutoff and that this was performed on August 14, 1981, by two City employees, Jerry Robey and Kenneth Wayne Johnson. A final bill was sent to Carr on August 17, 1981, on which it was noted that his water service had been terminated.

 Prior to this time Carr had shut the cutoff valves under the sinks and commodes in his house.

 Over the next several months Carr periodically checked his house. He made no attempt to check the water pressure but nothing rendered him aware that there was any potential hazard with respect to water service in his house.

 January 1982 was an extremely cold month in Jackson. Carr was ill during this time and the next opportunity he had to check the house was on February 6, 1982. When he entered the house on that occasion Carr found a tremendous amount of water damage, apparently the result of pipes having burst in the ceiling of the house. The water was still running. Carr went to the City's water meter box outside and discovered that the valve was open. According to Carr, he could not see the glass on the meter face because it was covered with debris. He used a screwdriver to dig through the dirt and debris and finally reached the cutoff valve. With the assistance of his son-in-law, Jerry Davis, Carr closed he valve and this stopped the flow of water into the house.

 Carr subsequently filed a claim with his insurer, Maryland Casualty Company. Maryland Casualty paid Carr $18,516.18, an amount all agree represents the reasonable and necessary cost of repairs to the house necessitated by the water damage.

 As a part of the settlement of Carr's claim, Maryland Casualty took a subrogation agreement which in effect assigned to it any rights Carr may have had against third parties. Pursuant thereto, Maryland Casualty, on June 14, 1982, commenced the instant civil action by filing its complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi, naming the City of Jackson as Defendant. See Rule 17(b), Miss.R.Civ.P. Maryland Casualty charged that the City had been negligent in its duties to terminate water service to the Carr dwelling and that this negligence had proximately caused the $18,516.18.

 After various pre-trial proceedings, including discovery, the matter was called for trial on May 30, 1984, at the conclusion of which the jury returned a verdict for the Defendant, City of Jackson. Following denial of its motion for a new trial, Maryland Casualty perfected the instant appeal where the matter is now ripe for review.

 III.

 Maryland Casualty first argues that the Circuit Court

 erred in refusing to allow its counsel to cross-examine and otherwise treat as an adverse witness Jerry Sills, the superintendent of the meter reading department for the City of Jackson.

 Maryland Casualty called Sills as a witness and established that he had been employed by the Jackson City Water Department for 16 years and that he was at present Superintendent of Meter Reading and Service Connections. After covering several uncontroversial points regarding procedures in the City Water Department, Sills was asked a leading question to which counsel for the City of Jackson objected. The Circuit Court sustained the objection on grounds that the witness had not been shown" hostile ". Maryland Casualty's position was that" he's City employee ". Thereafter, counsel for Maryland Casualty sought to cross-examine Sills regarding some alleged discrepancies between Sills' testimony at ...


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