The opinion of the court was delivered by: Smith, Justice
95-CA-00907-SCT, __So. 2d __
MISSISSIPPI VALLEY GAS COMPANY v. THE ESTATE OF SIDNEY WALKER, NANCY WALKER, MAMIE DUREN, SHERMAN ALDRIDGE, ANNIE FAIR, EARTHLENA DAVIS, DOROTHY GLENN, THE ESTATE OF ISIAH PRAYER, ANNIE B. SILLS, EXECUTRIX OF THE ESTATE OF HENRIETTA BILLINGSLEY, DECEASED; TRACEE STANLEY, KARO LOGGINS, SR. AND NORA CORDER
DATE OF JUDGMENT: 06/05/95
TRIAL JUDGE: HON. ROBERT LEWIS GIBBS
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 8/6/98
MOTION FOR REHEARING FILED:
¶1. On November 2, 1992, the Plaintiffs filed a complaint in the Circuit Court of the First Judicial District of Hinds County alleging negligence on the behalf of Mississippi Valley Gas in connection with its maintenance, operation, and repair of a natural gas pipeline in Greenwood, Mississippi. The Plaintiffs alleged that Mississippi Valley Gas' negligence resulted in a fire that caused the following damages: loss of their residences and contents; emotional distress; mental pain and suffering; inconvenience; and relocation expenses and related expenses. On December 1, 1992, Mississippi Valley Gas filed its answer denying any liability. A trial was held on the merits, and the jury returned a verdict in favor of the Plaintiffs finding Mississippi Valley Gas was negligent and awarded damages in varying amounts for their homes, contents, mental anguish, pain and suffering, cost of repair, loss of rent, medical bills and rental expense for a total amount of $508,896.75.
¶2. On appeal, Mississippi Valley Gas argues the following: (1) evidence of negligence presented by the Plaintiffs was not legally sufficient; (2) the trial court erred in allowing the expert testimony of Phillip Bryant; (3) the Plaintiffs failed to offer legally sufficient evidence on the elements of and damages claimed for emotional distress; (4) the trial court erred in its refusal to clarify the form of the verdict; and (5) the trial court erred in refusing to allow certain testimony of Terry Ricks. The Plaintiffs contend that the above assignments of error are without merit.
¶3. On Saturday, May 2, 1992, the City of Greenwood was demolishing vacant, dilapidated houses on the block of 300 Ash Street. Around 4:30 or 5:00 that afternoon, Herbert Davis, an employee of the City of Greenwood, was operating an excavator near the rear of 318 Ash Street when he accidentally hit an underground gas pipeline. Approximately two feet of the gas pipeline was pulled above ground and started blowing gas. Davis borrowed one of the residents' telephone and attempted to call Mississippi Valley Gas (hereinafter "Valley Gas"). Davis contacted Charles Reed, a service representative for Valley Gas, and Reed arrived on the scene to repair the leak in approximately ten to fifteen minutes.
¶4. Upon arrival, Reed repaired the blowing leak by cutting four feet of one-inch pipe off of the damaged line and placing a one-inch night cap on the pipeline. After capping the line, Reed performed a soap test on the cap to determine whether gas was still leaking from where he placed the cap on the damaged pipeline, and the test resulted in the finding of no leak at the cap. Additionally, Reed stayed at the scene for fifteen minutes and walked along the remaining underground portion of the damaged line conducting a "nose" test in order to detect any other leaks, and Reed did not smell any scent of gas. Reed, however, did not perform a CGI (Combustible Gas Indicator) test or a flame pack survey in order to detect any other underground leaks. After leaving the leak site, Reed returned to the Valley Gas office and filled out a leak ticket listing the reported leak as a Priority 1 and classified it as a Class A leak which is described as "first priority, scheduled repair required, not hazardous at the time of the classification." Reed additionally left a "trouble ticket" on the desk of his supervisor to have the service to this line disconnected.
¶5. After the leak was repaired, residents testified that the smell of gas was still present in the area throughout the weekend. Some residents testified that Valley Gas was called and that the smell of gas was reported to Valley Gas. Other residents, who believed that the leak had been repaired by Valley Gas, testified that they did not call Valley Gas after Reed repaired the leak. Then, on May 4, 1992, residents heard a loud noise similar to the sound of thunder, a bomb, or a stick of dynamite, and a fire broke out in the general area where the City of Greenwood had been destroying the old, vacant houses. The fire spread rapidly along the block and destroyed numerous houses in its path.
¶6. On November 2, 1992, the Plaintiffs filed a complaint in the Circuit Court for the First Judicial District of Hinds County alleging negligence on behalf of Valley Gas in connection with its maintenance, operation, and repair of a natural gas pipeline in Greenwood, Mississippi. The Plaintiffs alleged that Valley Gas' negligent maintenance and operation of the natural gas pipeline resulted in a fire that caused the following damages: loss of their residences and contents; emotional distress; mental pain and suffering; inconvenience; relocation expenses and related expenses. On December 1, 1992, Mississippi Valley Gas filed its answer denying any liability. A trial was held on the merits, and the jury returned a verdict in favor of the Plaintiffs finding Mississippi Valley Gas was negligent and awarded damages in varying amounts for their homes, contents, mental anguish, pain and suffering, cost of repair, loss of rent, medical bills and rental expense for a total amount of $508,896.75. The jury, however, did not award punitive damages to the Plaintiffs after finding that Valley Gas was at fault. Following the jury's verdict, Valley Gas filed a Motion for Judgment Notwithstanding the Verdict and as a Matter of Law, or in the Alternative, for a New Trial, or further in the Alternative, for a Remittitur. However, the trial court denied Valley Gas' Motion for Judgment Notwithstanding the Verdict, for New Trial, and for Remittitur.
¶7. Aggrieved by the trial court's decision, Valley Gas appeals to this Court and cites the following issues: I. WHETHER THE PLAINTIFFS FAILED TO OFFER SUFFICIENT EVIDENCE OF NEGLIGENCE.
II. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE EXPERT TESTIMONY OF PHILLIP BRYANT.
III. WHETHER THE PLAINTIFFS FAILED TO OFFER LEGALLY SUFFICIENT EVIDENCE ON THE ELEMENTS OF AND DAMAGES CLAIMED FOR EMOTIONAL DISTRESS.
IV. WHETHER THE TRIAL COURT ERRED IN ITS REFUSAL TO CLARIFY THE FORM OF THE VERDICT.
V. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW TESTIMONY OF TERRY RICKS.
I. WHETHER THE PLAINTIFFS FAILED TO OFFER SUFFICIENT EVIDENCE OF NEGLIGENCE.
¶8. Valley Gas contends that the Plaintiffs failed to make a jury issue on negligence because they failed in the burden of proof on the elements of both breach and proximate cause. Furthermore, Valley Gas contends that the trial court erred in denying its Motion for JNOV and/or in denying its peremptory instruction, D-1. The Plaintiffs assert that they provided legally sufficient evidence of negligence and that the verdict of the jury should be affirmed.
¶9. When reviewing the trial court's denial of a Motion for Judgment Notwithstanding the Verdict, this Court's scope of review is limited as follows: Where, as here, the trial Judge has refused to grant a motion for JNOV, we examine all of the evidence--not just evidence which supports the non-movant's case--in the light most favorable to the party opposed to the motion. All credible evidence tending to support the non-movant's case and all favorable inferences reasonably drawn therefrom are accepted as true and redound to the benefit of the non-mover. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, the motion should be granted. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the jury verdict should be allowed to stand and the motion denied, and, if it has been so denied, we have no authority to reverse.
C & C Trucking Co. v. Smith , 612 So. 2d 1092, 1098 (Miss. 1992) (citing Royal Oil Co. v. Wells , 500 So. 2d 439, 442 (Miss. 1986); Stubblefield v. Jesco, Inc. , 464 So. 2d 47, 54 (Miss. 1984); City of Jackson v. Locklar , 431 So. 2d 475, 478 (Miss. 1983); Paymaster Oil Mill Co. v. Mitchell , 319 So. 2d 652, 657 (Miss. 1975)). Furthermore, "[t]he rule in this state is that the action of the trial court upon a motion for a new trial is to be favorably considered upon appeal and supported unless manifest error appears or unless its action in sustaining the motion manifests an abuse of discretion." Mississippi State Highway Comm'n v. Hancock , 309 So. 2d 867, 871 (Miss. 1975).
¶10. In order to support a finding of liability on the part of Valley Gas, the Plaintiffs were required to prove each of the basic elements of negligence, i.e., duty, breach, proximate cause, and damages, by a preponderance of the evidence. See Hardy v. K Mart Corp. , 669 So. 2d 34, 37-38 (Miss. 1996) (citing Palmer v. Biloxi Reg'l Med. Ctr., Inc. , 564 So. 2d 1346, 1354 (Miss. 1990) (citing Phillips v. Hull , 516 So. 2d 488, 491-92 (Miss. 1987))). In the instant case, Valley Gas admits that it owed a duty to exercise reasonable care in the inspection and repair of the subject gas line under the same or similar circumstances. Valley Gas also admits that certain damages were suffered by the Plaintiffs as a result of the subject fire. Therefore, the only questions that remain before this Court is whether the evidence presented, viewed in the light most favorable to the Plaintiffs, is sufficient to show that there was a breach of the duty owed by Valley Gas and that such breach was the proximate cause of the damages suffered by the Plaintiffs.
¶11. A. K. Rosenhan, expert witness for the Plaintiffs, testified that Charles Reed's actions in inspecting and repairing the gas leak were not reasonably sufficient under the circumstances. Reed testified that when he arrived at the scene he repaired the blowing leak by cutting four feet of the pipe off and placing a one-inch night cap on the broken line to stop the leak. Reed further testified that he performed a "bubble test" or "soap test" to detect whether the line was still leaking around the area where the one-inch night cap was placed. Reed also testified that for fifteen minutes after capping the pipeline that he walked along the one-inch line back to the main line conducting a smell test to determine whether there were any other leaks.
¶12. However, Valley Gas' service procedures required the following procedure for outside gas leaks: Gas Outside. The first consideration is to be certain that the gas is not also migrating inside. Use the leak machine and your nose. If gas is found or suspected to be inside, take the action discussed under "Gas Inside," above. The hazard from gas outside is fire. Persons, property and source of ignition should be removed and kept away.
Reed testified that he had a leak machine, the CGI machine, with him at the scene but that he did not use it because he did not believe it was necessary. Rosenhan testified that in addition to capping the broken pipeline that a ...