Petition for a Writ of Certiorari — Wideman v. Mississippi Valley Gas Co.

end

ot phat phar phat shat Aha thas tha aha phe Ahh

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1974

wR @ er

DUDLEY WIDEMAN, Administrator

of the Estate of Claude Wideman,

Deceased, Petitioner,

Vv.

MISSISSIPPI VALLFY GAS COMPANY,

Respondent.

PFTITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPFALS

FOR THE FIFTH CIRCUIT

William S. Lawson

Main Street

P.O. Box 848

Tupelo, Mississippi 38801

Joe H. Daniel

Daniel ,Coker ,Horton,Bell

and Dukes

405 Tombigbee Street

P.O. Box 1084

Jackson, Mississippi 39205

COUNSEL FOR PFTITIONER

April 25, 1975

INDEX

Page

Opinion below . ...-++-+-«« « 2

Jurisdiction ... +++ +e © « e 2

Questions presented ...++«. « 3

Constitutional provisions

ANGORLVOG: > 4:36.95 2v-6 8 0 wo 0 4

Statement of the case ..... .- 4

Reasons for granting the writ. . 8

1. The decision below deprived

the petitioner of the right

to trial by jury guaranteed

by the 7th Amendment to the

Constitution of the United

States, and is contrary to

decisions of this Court. 8

2. The decision below deprived

the petitioner of due pro-

cess of law guaranteed by

the 5th Amendment to the

Constitution of the United

States ..-«.se-«es'ec ec « 8

Cene leet ao Aa 6 8 ee ee 18

Appendix "A" (Opinion and Judg-

ment of Court of Appeals) . App. 1

Appendix "B" (5th Amendment) . . App. 19

CITATIONS

, Cases:

Boeing Company v. Shipman, 411

F.2d Ses (Sth cir. 1969)

Giordenello v. United States,

3 U.S. 480, S.Ct.

1245, 2 L.Ed.2d 1503

(1958)

Green v. American Tobacco Com-

any, 375 F.2d 673 (5th

Cir. 1963, cert. denied

377 U.S. 943, 84 S.Ct.

1349, 1351, 12 L.Ed.2d

306 (1964)

ral

Hargrave v. Wellman, 276 F.2d_

948 (9th Cir. 1960)

Hutton v. United States, 501

F.2d 1055 (6th Cir. 1974)

av v. United States,, 303 U.S.

ee Le | 58 S.Ct. 468, 82 L.Ed.

607 (1938)

Laguna Royalty Co. v. Marsh,

350 F.2d 817 (5th Cir.

1965)

Lavender v. Kurn, 327 U.S. 645_

66 S.Ct. 740, 90,L.Ed.

916 (1946)

Mercelis v. Wilson, 235 U.S.

, 39 §.Ct. 150, 59

L.Ed. 370 (1915), ;

ii

9, 10,

11, 12,

18

16

14, 15

15

15

17, 18

15

10, 11

12, 18

15

Planters Manufacturing Co. v.

Protection Mutual Ins.

Co., 380 F.2d 869 (5th

Cir. 1967)

United States v. Atkinson, 297

0.8. L182, 56 8.Ct. 391,

80 L.Ed. 555 (1936)

Other Authorities:

Amendment 5, U.S. Constitution

Amendment 7, U.S. Constitution

9 Wright & Miller, Federal

Practice end Procedure,

sec. 2558 (1971)

iii

10,

15

14,

1l

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1974

DUDLEY WIDEMAN, Administrator

of the Estate of Claude Wideman,

Deceased, Petitioner,

Vv.

MISSISSIPPI VALLEY GAS COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Dudley Wideman,

respectfully prays that a writ of cer-

tiorari issue to review the suheoent and

Opinion of the United States Court of

Appeals for the Fifth Circuit entered

in this proceeding on January 30, 1975.

OPINION BELOW

The opinion of the Court of Appeals

appears in 507 F.2d 658 (5th Cir. 1975)

and is attached hereto as Appendix A.

No written opinion was rendered by the

District Court for the Northern Dis-

trict of Mississippi.

JURISDICTION

The judgment of the Court of Ap-

peals for the Fifth Circuit was entered

on January 30, 1975. There was no peti-

tion for rehearing filed. This petition

for certiorari was filed within 90 days

of January 30, 1975. This Court's

jurisdiction is invoked under 28 U.S.C.

sec. 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner was denied

his 7th Amendment right to a trial by

jury by the action of the Court of Ap-

peals in affirming the District Court's

grant of a judgment n.o.v. to the defen-

dant gas company.

2. Whether petitioner was denied

due process of law when after trial and

jury verdict in nis favor, the District

Court granted the defendant gas company

a judgment n.o.v. adopting as its basis

therefor a different rule of law from

that under which the case was tried, no

objection at trial being made by the

defendant gas company to the rule of

law used at trial.

CONSTITUTIONAL PROVISIONS INVOLVED

1. U.S. Constitution Amendment 7:

In Suits at common law, where the

value in controversy shall exceed twenty

dollars, the right of trial by jury

Shall be preserved, and no fact tried

by a jury, shall be otherwise reexamined

in any Court off the United States, than

according to the rules of the common law.

2. U.S. Constitution Amendment 5:

[for complete text see Appendix "B";

pertinent provision is as follows: ]

No person. . .shall be. ..

deprived of life, liberty, or

property, without due process

of law;....

STATEMENT OF THE CASE

Dudley Wideman, as administrator of

the estate of Claude Wideman, deceased,

brought suit in the District Court of

4

the Northern District of Mississippi

against Mississippi Valley Gas Company.

Federal jurisdiction was predicated upon

28 U.S.C. sec. 1332, commonly known as

diversity of citizenship, the plaintiff

and the defendant being citizens of dif-

ferent states. R. 405, 406. The case

began in the said District Court on

August 22, 1973, and was tried before a

six person jury (pursuant to said Court's

rules). R. 8, 10.

The complaint charged Mississippi

Valley Gas Company (hereinafter "the

gas company") with negligence in causing

the death of Claude Wideman. The jury

was so instructed. R. 402. The Court

charged the jury that the duty allegedly

breached by the gas company was that of

"ordinary care required of a reasonably

prudent operator of a gas transmission

line. . . ." R. 407. It was upon that

standard of care that the case was con-

5

‘

sidered by the jury. R. 426. The jury

retired, deliberated, and returned a ver-.

dict for the plaintiff, Dudley wideman,

in the amount of $100,000.00. R. 426, 427.

\ After the plaintiff rested his case

the gas company moved for a directed ver-

dict in its favor. R. 176, 186-188.

After the motion was made in chambers

the following occurred: |

“THE COURT: ' May I inquire what is

the defendant's standard? Is

the standard of care in gas

operation ordinary or of the.

highest?

t

MR. HOLLAND: (attorney for the gas

company, defendant) Ordinary.

THE COURT: Motion is overruled.

MR. HOLLAND: All right." R. 188,

The gas company presented its evidence

/

and rested. R. 315., The plaintiff pre-

sented some rebuttal evidence and tested.

R. 364. In chambers the gas company

again moved for a directed verdict. Re

366-368. The motion was Overruled. R.

6 ‘

368. In discussing the instructions

requested by the gas company the Court

told all counsel that he believed the

standard of ordinary care controlled in

this case. No objection was then made

by any counsel. R. 373, 374. The Court

charged the jury, R. 394-423, that the

standard of ate owed by the gas company

to the decedent was that of ordinary care.

Neither plaintiff nor defendant took

exception to the Court's charge. R. 423.

The gas company filed a motion for

a judgment n.o.v. or a new trial. The

hearing was held on September 12, 1973.

The Court there concluded that the cor-

rect standard or legal duty to be ap-

plied to this case was not the duty of

ordinary care, but only the duty owed

to a gratuitous licensee which is to

refrain from wanton or willful injury

to the licensee. (5th Cir.App. 2, 3, 6).

An appropriate order was entered sustain-

7

ing the gas company's motion for a judg-

ment n.o.v. (5th Cir.App. 187). From

that order Dudley Wideman appealed to the

United States Court of Appeals for the

Fifth Circuit. That Court's opinion and

judgment, affirming the District Court's

granting of a judgment n.o.v. to the gas

company is found in Appendix A to this

petition. From that judgment, Dudley

Wideman petitioned this Court to review

the Fifth Circuit's judgment by writ of

certiorari, timely filed.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW IS BASED UPON

THE IMPORTANT FEDERAL QUESTION OF

WHETHER IN DIVERSITY CASES, FEDERAL

COURTS SHOULD APPLY A FEDERAL RATHER

THAN A STATE TEST FOR THE SUFFICI-

ENCY OF EVIDENCE NECESSARY TO CREATE

A JURY QUESTION, AND WHAT THE PROPER

TEST IS, IN RELATION THERFTO, IN

CONNECTION WITH MOTIONS FOR A

DIRECTED VERDICT AND FOR JUDGMENT

N.O.V.. THE FIFTH CIRCUIT COURT OF

APPEALS HAS DECIDED THOSE ISSUES IN

A WAY THAT CONFLICTS WITH APPLI-

CABLE DECISIONS OF THIS COURT, AND

IN A WAY WHICH CONFLICTS WITH DE-

CISIONS OF OTHER COURTS OF APPEALS

RELATING TO THESE SAME ISSUES.

The decision below is grounded upon

the Fifth Circuit Court of Appeals' de-

cision in the case of Boeing Company v.

Shipman, 411 F.2d 365 (5th Cir. 1969).

Sitting En Banc that Court stated that

it was well settled in the Fifth Circuit

that in diversity cases federal courts

apply a federal rather than a state test

for the sufficiency of evidence to create

a jury question. It noted that the Cir-

cuits are divided on that question, i.e.,

federal v. state test in determining the ©

sufficiency of the evidence for sub-

mission to the jury. 411 F.2d at p. 368.

The Court further decided that the stan-

dard to be applied in diversity cases,

to determine whether there is sufficient

9

evidence to submit the case to the jury

on motions for directed verdicts and for

judgment notwithstanding the verdict, is

not the same in all diversity cases.

The standard differs in FELA (45 U.S.C.

sec. 51 et seq.) and Jones Act (46 U.S.C.

sec. 688) cases, and all other diversity

cases which are not based on statute.

In fact the Court said as to these two

classes of cases: ". . .the formulation

of the test of sufficiency of evidence

is substantially different." 411 F.2d

at p. 373. (emphasis supplied).

The original opinion in the Boeing

case, supra (411 F.2d 365) was based

upon the case of Planters Manufacturing

Co. v. Protection Mutual Ins. Co., 380

F.2d 869 (5th Cir. 1967). The Planters’

rationale on the sufficiency of evidence

test was based upon the language of this

Court in the case of Lavender v. Kurn,

327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916

10

(1946). The Fifth Circuit, in rejecting

the principles enunciated in the Plant-

ers’ case, supra (380 F.2d 869), on this

question, also rejected this Court's

reasoning and conclusions in Lavender v.

Kurn, 327 U.S. 645 (1946). The Court

was explicit, saying that we now reject

the Planters principle and hold that the

FELA test is peculiar to that kind of

case as a consequence of the statute it-

self and is accordingly not applicable

in non-FELA jury trials. 411 F.2d at

p. 372.

The Court then proceeded to adopt

"the" standard to be used in determining

whether there is sufficient evidence to

submit a case to the jury in connection

with motions for directed verdicts and

for judgment notwithstanding the verdict

in federal diversity cases which are not

based on statute, e.g., non-FELA federal

cases. 411 F.2d at p. 373-375. The

11

question of sufficiency of the evidence

to require submission of a case to the

jury presents a constitutional problem.

411 F.2d at p. 377. As Circuit Judge

Rives noted, when the majority of the

Court repudiates for diversity cases the

FELA standard and particularly the for-

mula adopted in Lavender v. Kurn, 327

U.S. 645 (1946), it commits an Seies of

constitutional proportions. 411 F.2d

at p. 377, 378.

Thus, when the majority of the Fifth

Circuit promulgated what it considered

to be the standard for determining the

sufficiency of evidence necessary to

require the submission of a case to ‘the

jury, it acted beyond its authority.

It expressly overruled this Court's

sufficiency test set out in Lavender v.

Kurn, 327 U.S. at p. 653. The standard

So adopted in the Boeing case, supra

(411 F.2d 365) was applied in the case

12

ianeaieteneeemeeene re

1

sub judice. It is submitted that the

7th Amendment speaks of no double stan- |

dard as to the sufficiency of evidence

necessary to take a‘case to a jury. It

is further submitted that, the time is

ripe for. this Honorable Court té so

declare. A decision by this Court clear-

ly defining the sufficiency of evidence

required to make a jury issue in all -

federal diversity cases, statutory and

non-statutory, would be of great impor-

tance and assistance to all’ the lower

federal courts and would lend itself

greatly to a uniform application of a .

constitutional right of utmost importance

to every citizen of these United States.

In the case sub judice the Fifth

Circuit's judgment, affirming the grant-

ing of a judgment n.o.v: by the District

Court in — oF the gas company, was

based etnit

(1) the only duty’ owed the

deceased by the gas company was to re-

13

frain from willfully and wantonly injur-

ing him, and (2) on the record before it,

based on the duty in (1) above, reason-

able men could not differ about the fact

that there was no showing the gas com-

pany breached the duty it owed the de-

cedent. App. 3. In reaching conclusion

(2) above the Court invaded the province

of the jury, contrary to the 7th Amend-

ment. In applying the duty in (1)

above, the Court denied Dudley Wideman

due process of law under the 5th Amend-

ment. The District Court also did so.

Many decisions say that an inscruc-

tion not objected to becomes the law of

the case. This may be merely one way of

phrasing the general principle that

failure to object ordinarily bars later

challenge to an instruction. 9 Wright

sec. 2558 p. 670, 671 (1971); Green v.

14

& Miller, Federal Practice and Procedure,

American Tobacco Company, 325 F.2d 673,

676 (5th Cir. 1963), cert. denied 377

U.S. 943, 84 S.Ct. 1349, 1351, 12 L.Ed.

2d 306 (1964); United States v. Atkinson,

297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555

(1936). Further, however, a party who

requests an instruction has invited any

error in it and cannot complain if the

instruction, or one substantially like it

is given. 9 Wriqht & Miller, Federal

Practice and Procedure, sec. 2558, p. 675

(1971); Hargrave v. Wellman, 276 F.2d 948,

950, 951 (9th Cir. 1960); Mercelis v.

Wilson, 235 U.S. 579, 35 S.Ct. 150, 59

L.Ed. 370 (1915). In such a case there

is deemed to be no error. In addition

the general rule is that an appellate

court will not entertain an argument

based upon a theory not litigated below.

Hutton v. United States, 501 F.2d 1055,

1062 (6th Cir. 1974); Laguna Royalty Co.

v. Marsh, 350 F.2d 817, 825, 826 (5th Cir.

15

1965); Giordenello v. United States, 357

U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503

(1958).

In the case sub judice the defendant

gas company told the District Court what

Standard of care applied to this case, R.

188, at the close of the plaintiff's case,

and again at the close of all the evi-

dence. R. 366, 367. The Court charged

the jury on the standard of Ordinary care,

R. 394-423. No exceptions to the charge

were voiced by the defendant, gas company.

R. 423. The jury returned a verdict for

the plaintiff in the amount of $100,000.00.

R. 426, 427. Thus, the law of the case

was established, i.e., ordinary care, and

there are many factual issues creating a

jury issue on the breach of that duty in

this record. The District Court and the

Court of Appeals acknowledged that fact.

App. 2, 5, 6. The disturbance of those

facts resolved in plaintiff's favor by

16

the jury, by the District Court and the

Court of Appeals was a gross invasion of

the province of the jury. This is a vio-

lation of the 7th Amendment to the Con-

stitution. There was no error of law to

be considered. The gas company in effect

invited error by not pleading the stan-

dard of care urged by 1¢ on its motion

for judgment n.o.v.

Dudley Wideman was denied due pro-

cess of law as well. In effect the gas

company on its motion for judgment n.o.v.

urged a new defense to the suit. At that

point in time the plaintiff was precluded

from offering any evidence to rebut «he

new defense. In this instance the defen-

dant must be bound by the theories under

which the case was tried. To allow the

gas company to urge a new theory, after

trial, upon the Court, certainly cannot

be condoned or permitted. Kay v. United

States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed.

17

607 (1938).

h

CONCLUSION

The basis of the Fifth Circuit Court

of Appeals' review of the case sub judice

under its decision in the case of Boeing

Company v. Shipman, 411 F.2d 365, 373-377

(Sth Cir. 1969) is unconstitutional. It

is diametrically opposed to this Court's

decision in the case of Lavender v. Kurn

327 U.S. 645, 66 S.Ct. 740, 90 L.Fd. 916

(1946). Both lower Courts invaded the

province of the jury--a violation of the

7th Amendment. The defendant gas company

invited any alleged error, and thus on

appeal there was no error. The question

of the sufficiency of evidence to make a

jury issue in all federal diversity cases,

Statutory and non-statutory, has not been

answered by this Court. This case pre-

sents the Court with the opportunity to

18

do so. For these reasons a writ of

certiorari should issue to review the

judgment and opinion of the Fifth Circuit

Court of Appeals.

Respectfully submitted,

WILLIAM S. LAWSON

Main Street

P.O. Box 848

Tupelo, Mississippi 38801

JOE H. DANIEL

Daniel ,Coker ,Horton,Bell

and Dukes

405 Tombighee Street

P.O. Box 1084

Jackson, Mississippi 39205

19

‘APPENDIX "A"

Dudley WIDFMAN, Administrator

of the Estate of Claude Wideman,

Deceased, Plaintiff-Appellant

Vv.

MISSISSIPPI VALLEY GAS COMPANY,

Defendant-Appellee.

.No. 73-3574 eee

United States Court Of Appeals,

Fifth Circuit.

' Jan. 30, 1975. ;

Appeal from the United States Dis-

trict Court for the Northern District

of Mississippi. |

Before COLEMAN, CLARK and RONEY,

Circuit Judges. : 7

RONEY, Circuit Judge: |

Claude Wideman was killed in an

explosion and fire resulting when a

small road grader he was operating on a

private residential lot hit an under-

ground gas line. . The outcome of this

App. l ; ;

=eeuememnens

appeal turns on a determination of the

standard of care owed to Wideman by the

defendant gas company under Mississippi

law. The jury, instructed that the gas

company owed a duty of ordinary care,

apparently decided that the gas line

easement was not adequately marked and

the line itself was not a sufficient

depth below the ground. Wideman's es-

tate was awarded the sum of $100,000.

Notwithstanding this jury verdict, the

trial court entered a judgment for

defendant on the ground that the jury

had been incorrectly instructed as to

the standard of care. The court held

that the gas company owed no higher

duty under the circumstances than to

refrain from wanton or willful injury

to decedent, and that the evidence was

not sufficient for jury consideration

under such correct standard. We affirm.

App. 2

[1] Essentially, we decide two

points: first, a gas company with gas

lines buried within the boundaries of a

legal easement owes to a person making

an unforeseeable extraordinary use of

the surface no duty higher than to re-

frain from willful and wanton injury,

unless and until it has notice of that

proposed use; and second, on the record

before us, the trial court was correct

in the determination that the evidence

was such that reasonable men could not

differ on the facts that the gas company

had received no notice of the extra-

ordinary use and that it had not

breached its duty to refrain from will-

ful or wanton conduct.

In 1930 Mississippi Valley Gas

Company's predecessor-in-interest ac-

guired a valid gas line right-of-way

across some property in northern Mis-

sissippi which is presently owned by

App. 3

Tommy D. Beasley. The recorded ease-

ment conveyed a "right of way to lay,

construct, maintain and operate a pipe-

line" across lands containing seventeen

acres described in quarter section terms.

The exact path of the easement was not

described. The owner reserved the "use

and enjoyment of said premises except

for the purposes herein conveyed to

purchaser." The document further pro-

vided that the pipeline was to be laid

below plow depth (agreed by the parties

to this litigation to be below six

inches), with the following paragraph:

It is understood and agreed

that purchaser (the gas company)

shall bury said pipe line below

plow depth wherever it crosses

any land that may be cleared

and in cultivation, and shall

also bury said pipe line below

plow depth across any land that

App. 4

may be in future cleared and put

in cultivation. _—

In compliance with the depth require-

ment, the gas line was originally laid

about 36 inches below the surface. It

has continued in use from its installa-

tion until the time of the occurrence

of the accident involved in this case.

During that period the character of the

land changed from wilderness to resi-

dential, and a house was constructed

thereon in 1946. The evidence was such

that the jury could have inferred that

the surface of the land had changed to

the point that the pipe line may have

been only five or six inches deep at the

time of the accident. The area was

grown over and had been undisturbed for

some time. Mississippi Valley made —

periodic foot patrols along the gas

line to determine potential problems

App. 5

a

from erosion, construction, and the like,

but there were no signs marking the

path of the line except where it crossed

a public highway some distance from the

point of the accident. —

On April 17, 1971, Claude Wideman

was operating a road grader on the

Beasley property in response to

Beasley's request for county assistance

in alleviating a drainage problem

created by water running off the city-

maintained road immediately in front

of his property. While Beasley was

aware of the general location of the

pipe line on his property, neither he

nor decedent contacted Mississippi

Valley to ascertain the exact location

of the line. Mississippi Valley was

not otherwise made aware of the fact

that decedent intended to Operate the

road grader over the gas line. After

making a few passes with the grader,

App. 6

stiaaiahcatanianiamenianentatenseiniaanenieadinddmaaiaiaeemmtiemmattiinentinneiaemedl

decedent struck the gas line with the

grader blade and the line ruptured,

causing an explosion and fire which

resulted in decedent's unfortunate

death a short time later.

[2] We agree with District Judge

William C. Keady that under the cir-

cumstances of the above accident, the

defendant was entitled to judgment as

a matter of law. Absent willful or

wanton misconduct, the defendant could

not be charged with fault of inaction

until it had notice of the “hazard about

to be experienced.” Although there is

little Mississippi law on the subject,

the Supreme Court of Mississippi appears

to recognize that in the operation of

a gas line, some accidents and injuries

are too remote and unforeseeable for a

defendant to be held legally liable

therefor. As said in a recent case

involving a pipe line accident:

App. 7

“f \

"The rule is firmly estab-

lished in this state, as in

nearly all the common law states,

that in ordér that a person who ©

diséie a particular act which re-

sults in injury to another shall

be liable therefor, the act must

be of such character and done in

such a situation, that the person

doing it should reasonably have

anticipated that some injury to

another will probably result

therefrom, D'Antoni v. Albritton,

156 Miss. 758, 766, 126 So. 836;

Williams v. Lumpkin, 169 Miss.

146, 152, 152 So. 842; but that

the actor is not bound to a pre-

vision or anticipation which

would include an unusual, im-'

probable, or extraordinary

occurrence, although such hap-.

pening is within the range of

App. 8

*

possibilities. Illinois Cent. R.

Co. v. Bloodworth, 166 Miss. 602,

617, 145 So. 333;. . ."

Larco Drilling & Fxploration Corp. v.

Brown, 267 So.2d 308, 310 (Miss. 1972),

guoting Mauney v. Gulf Refining Co.,

193 Miss. 421, 9 So.2d 780 (1942)

(emphasis added).

In Larco Drilling, the Supreme

Court held that a county employee opera-

ting a bulldozer which struck the defen-

dart's gas line, thus causing the oper-

ator's injuries was a mere licensee and

reversed a verdict in his favor and

rendered judgment for the owner of the

gas line. The county employee was

attempting to fight a forest fire at the

time but his presence was unknown to the

gas line owner.

Unless the likelihood of some acci-

dent or injury of the type which occurred

in this case was reasonably foreseeable

App. 9

by Mississippi Valley, it was under no

duty to take action to avoid such an

accident. Mississippi Valley had duly

recorded its easement on the county

land records, thus giving full legal

notice of the presence of the pipe line

on the Beasley property. It could

reasonably be expected that anyone

planning use of the property would be

aware of the pipe line's existence, if

not its location. It could not be

foreseeable by defendant that one know-

ing of the pipe line would excavate the

property without inquiring of Missis-

Sippi Valley of the exact pipe line

location.

There can be little doubt that had

Beasley or decedent inquired about the

location of the gas line or in any other

way conveyed to Mississippi Valley any

information from which it could have

concluded that the easement was to be

App. 10

graded, Mississippi Valley would have

been under a duty to take some action--

for example, warning of the danger in-

volved, marking the location of the

line, or relocating it at a greater

depth--to prevent an accident such as

the one which did occur.

See Young v. Herrington, 312 S.W.

2d 685, 687 (Tex.Civ.App. 1958). But

the record is clear that no one did any-

thing to place Mississippi Valley on

actual or constructive notice of the

possibility of this particular road

grader activity. Without such notice,

a duty for defendant to take action

could arise only if this type of acci-

dent and injury could have been reason-

ably anticipated. No duty would arise

as to any “unusual, improbable, extra-

ordinary and freakish accident” that,

even though possible, a reasonable man

would not have considered probable.

App. 11

Larco Drilling, supra, 267 So.2d at 310.

Other than Larco Drilling, there is

little authority from the Mississippi

courts from which to evaluate what they

would consider as meeting this threshold

test of foreseeability in a case of this

type. The courts of Texas, which have

handled a large number of oil and gas

transmission line cases, have had greater

opportunity to develop the scope of fore-

seeability in this unique area.

[3] Texas views the issue of reason-

able foreseeability in pipe line cases as

centering on whether the use being made

of the surface of the right-of-way is one

that is ordinary, or one that is extra-

ordinary, considering the character and

location of the land. The operator has

a duty to maintain the pipe line so that

it will be safe for those making an

ordinary use of the land, but anyone

making an extraordinary use of the sur-

App. 12

face has the initial burden of either

avoiding the pipe line or notifying the

operator, who must then take steps to

prevent contact. Phillips Pipe Line Co.

v. Razo, 420 S.W.2d 691 (Tex. 1967);

Pioneer Natural Gas Co. v. K & M Paving

Co., 374 S.W.2d 214 (Tex. 1963). The

language used by the Texas Supreme Court

is very similar to that used by the

Supreme Court of Mississippi in Larco

Drilling, suggesting the two courts

substantively view the issue in identical

terms. The initial question becomes

then, whether the explosion in the in-

stant case was caused by an ordinary use

of the surface.

We are not here confronted with'a

road grader performing routine mainten-

ance along a public thoroughfare, compare

Concho Construction Co. Inc. v. Oklahoma

Natural Gas Co., 201 F.2d 673 (10th Cir.

1953), but with a scraper operating some

App. 13

distance from and not parallel to the

road. See generally, Annot., 30 A.L.R.

3d 685 (1970). Plaintiff asserts that

the use of county graders to alleviate

drainage problems on private property

is not uncommon in northeast Mississippi,

but this does not make the use of con-

struction equipment “ordinary” in the

sense that it should be anticipated by

the defendant without special notice.

Cf. Phillips Pipe Line, supra.

"Ordinary" connotes a use that is

"usual," “regular,” and “normal,” some-

thing of a continuing nature so that a

person should be familiar with it. A

basement may be dug when a house is built

but a house is not built on any particu-

lar lot with sufficient frequency to say

that the digging of the basement is an

“ordinary use” of that lot. Since Mis-

sissippi Valley's liability must be de-

fined by its conduct with respect to the

App. 14

Beasley property, the issue is what might

be an ordinary use of the property.

What could ordinarily be expected

ina semi-rural area might be the opera-

tion of automobiles on a dirt driveway

over the pipe line, or someone planting '

a garden. We do not consider the exca-

vation made of the surface here, however,

as Pee that the defendant should be

aimvent with protecting’ dgetizin'e it in —

; Operation and maintenance of its’ pipe

line. To hold it accountable in this

circumstance would impose too heavy a.

responsibility for an occurrence that was

only remotely and sliahtly probable under

Larco Drilling. !

Additional support for this view is

found in that line of cases involving ;

the operation and maintenance of unin-

Sulated electric transmission lines. In ~ ,

these cases the courts appear to focus

on the location of the accident and the

_App. 15

forseeability, in that location, cf the

conduct of the injured party from which

the injury arises. See generally Mis-

Sissippi Power & Light Company v.

Shepard, 285 So.2d 725 (Miss. 1973).

Affirmed.

UNITED STATES COURT OF APPFALS

FOR THE FIFTH CIRCUIT

No. 73-3574

D. C. Docket No. CA~-71-147K

DUDLEY WIDFPMAN, Administrator

of the Estate of CLAUDE

WIDEMAN, Deceased, Plaintiff-

Appellant,

versus

MISSISSIPPI VALLEY GAS

COMPANY, Defendant-

Appellee.

App. 16

Appeal from the United States

District Court for the

Northern District of Mississippi

Before

COLEMAN, CLARK and RONEY, Circuit

Judges.

JUDGMENT

This cause came on to be heard on

the transcript of the record from the

United States District Court for the

Northern District of Mississippi, and

was argued by counsel;

ON CONSIDERATION WHEREOF, It is

now here ordered and adjudged by this ©

Court that the judgment of the said

District Court in this cause be, and

the same is hereby, affirmed;

It is further ordered that plain- ;

tiff-appellant pay to defendant-appellee,

the costs on appeal to be taxed by the

Clerk of this Court. ,

January 30, 1975

Issued as Mandate: February 21, 1975

App. 17

Northern District of Mississippi

Piled

Feb 26 1975

Norman L. Gillespie, Clerk

By _/s/ S. Lumpkin

Deputy

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U. S. Court of Appeals, Fifth

Circuit

By /s/ Louise Wolf

Deputy Feb 21 1975

New Orleans, Louisiana

APPENDIX "B"

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or in-

dictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or public

danger; nor shall any person be subject

for the same offence to be twice put in

jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be de-

prived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public

use, without just compensation.

U.S. Constitution, Amendment 5

App. 19

CALAIS RPO IE TREO

CERTIFICATE OF SERVICF

I hereby certify that on this the

25th day of April, 1975, three copies of

the Petition for Writ of Certiorari were

mailed, postage prepaid, to Ralph Holland,

Esq., a member of the firm of Lumpkin,

‘Holland and Ray, 112 North Broadway

Street, P.O. Drawer 409, Tupelo, Mis-

Sissippi, 38801, attorney of record for

the respondent. I further certify that

all parties required to be served have

been served.

405 Tombigbee Street

P.O. Box 1084

. Jackson, Mississippi 39205

COUNSEL FOR PETITIONER