                                 IN THE COURT OF APPEALS
                                          OF THE
                                   STATE OF MISSISSIPPI
                                         NO. 1998-CA-01020-COA
WEATHERSBY CHEVROLET CO., INC.                                                                   APPELLANT
v.
REDD PEST CONTROL CO., INC.                                                                        APPELLEE

DATE OF JUDGMENT:           03/18/1998
TRIAL JUDGE:                HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:     LINDSEY C. MEADOR
ATTORNEYS FOR APPELLEE:     G. TODD BURWELL
                            LARA A. COLEMAN
NATURE OF THE CASE:         CIVIL - PROPERTY DAMAGE
TRIAL COURT DISPOSITION:    JURY VERDICT IN THE AMOUNT OF $18,217.39 IN
                            FAVOR OF APPELLEE
DISPOSITION:                REVERSED AND RENDERED - 3/14/2000
MOTION FOR REHEARING FILED: 3/23/2000; denied 8/1/2000
CERTIORARI FILED:           8/10/2000; granted 11/16/2000
MANDATE ISSUED:

      BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.

      McMILLIN, C.J., FOR THE COURT:

¶1. Redd Pest Control Company, Inc. sued Weathersby Chevrolet Company, Inc. in the Circuit Court of
Madison County claiming negligent repairs to one of its service trucks and recovered a judgment in the
amount of $18,217.39. Weathersby Chevrolet has appealed that verdict to this Court, alleging, among
other things, that the evidence was insufficient as a matter of law to support a finding of negligence on its
part in repairing the vehicle. Our review of the record satisfies us that, even viewing the evidence in the light
most favorable to Redd Pest Control, a finding of negligence cannot be based upon anything other than
speculation and conjecture. Concluding, therefore, that Redd Pest Control failed to meet its burden of
proof, we reverse and render the verdict of the jury and resulting judgment.

                                                        I.

                                                     Facts

¶2. A Redd Pest Control employee delivered his service truck to Weathersby Chevrolet complaining that
the air conditioning unit had begun to turn on and off of its own volition. A Weathersby Chevrolet mechanic
replaced the air conditioner control panel for the unit, after which the air conditioning system again worked
satisfactorily. Approximately five days later and after the truck had been driven approximately 310 miles,
the Redd Pest Control employee noticed smoke coming from the center area of the dashboard, which is
where the air conditioner control panel is physically located. The employee discovered that the smoke was
coming from a fire burning under the dash but he was unable to extinguish the blaze. The truck and all
equipment installed on the truck were destroyed. At trial, the Redd Pest Control employee testified that,
from the time of repair until he noticed smoke coming from the dashboard, the air conditioning system had
performed properly in all respects and that he had experienced no other problems in the truck's operation
after the repair work.

¶3. Redd Pest Control commenced this action, alleging that Weathersby Chevrolet was negligent in
performing the truck repairs. At trial, Redd Pest Control appeared to advance two alternative theories of
negligence. One theory was that Weathersby Chevrolet had misdiagnosed the problem with the truck and
that the true cause of the malfunctioning air conditioner was either a short or a loose connection in the
truck's wiring system which remained unrepaired after the control panel was replaced. Another theory was
that the Weathersby Chevrolet mechanic, when pulling out the control panel to replace it, had pulled the
device out too far, causing the attached wiring to be scraped over a piece of bare metal framing in the dash
which cut through the insulation and exposed the bare wiring. Under either scenario, according to Redd
Pest Control's theory, the inevitable jostling of the wiring caused by the normal use of the truck ultimately
caused the exposed or loose wiring to short out and produce the fire that destroyed the truck.

                                                      II.

                                                 Discussion

¶4. It is axiomatic that the plaintiff has the burden of proof in a negligence action. Hughes v. W & S
Constr. Co., 196 So. 2d 339, 343 (1967). The plaintiff must demonstrate by a preponderance of the
evidence that the defendant has violated some duty owed to the plaintiff and that the violation of this duty
has proximately caused an injury to the plaintiff. Strantz v. Pinion, 652 So. 2d 738, 742 (Miss. 1995).
Certainly, in this case Weathersby Chevrolet had a duty to use reasonable care and skill in repairing the
problem with the truck air conditioner. If the requisite level of care were not employed, then there was a
breach of duty. Nevertheless, to be actionable on these facts, Redd Pest Control also had to demonstrate
that the want of care and skill by Weathersby Chevrolet's mechanic proximately caused the fire that
destroyed the truck a week later. It is well-settled in this State that causation in tort law must be based
upon something more than the logically false assumption post hoc ergo propter hoc (that one event follows
another is proof that the earlier event caused the latter). Western Geophysical Co. v. Martin, 253 Miss.
14, 32, 174 So. 2d 706, 716 (1965).

¶5. The substantive question of law before the Court is whether Redd Pest Control presented sufficient
evidence to support its claim. In terms of procedure, Weathersby Chevrolet kept that substantive issue alive
for appellate review by seeking a directed verdict in its favor at the close of the evidence, James W.
Sessums Timber Co., Inc. v. McDaniel, 635 So. 2d 875, 880 (Miss. 1994), and by seeking a JNOV
after the jury returned its plaintiff's verdict. Id. Both these motions were denied by the trial court and
Weathersby urges on appeal that the trial court erred in denying these motions.

¶6. Our obligation when asked to review such a ruling is to consider the evidence in the light most favorable
to the verdict, to concede the truth of that evidence and to assume that the jury drew all inferences favorable
to the plaintiff that might reasonably be drawn from the evidence. If we are convinced, upon viewing the
evidence in that light, that no reasonable fact-finder could conclude that the plaintiff met its burden of proof
by a preponderance of the evidence, our obligation is to reverse. Otherwise, our duty is to affirm the verdict
of the jury. K-Mart Corp. v. Hardy, 735 So. 2d 975 (¶12) (Miss. 1999). It is in that light that we review
the record of this trial.

¶7. Redd Pest Control necessarily relied primarily upon circumstantial evidence to establish Weathersby
Chevrolet's allegedly negligent repair because those parts of the truck that might have offered some
objective basis to determine the cause of the fire were substantially consumed in the fire. This loss of
potentially probative evidence, though it may make the matter of proof more difficult, is not fatal to a
plaintiff's case. There can be no doubt that negligence in such cases may be established solely by
circumstantial evidence. Cadillac Corp. v. Moore, 320 So. 2d 361, 366 (Miss. 1975); Matthews v.
Carpenter, 231 Miss. 677, 682, 97 So. 2d 522, 524 (1957). However, case law cautions that the
circumstances surrounding an injury must be "such as to take the case out of the realm of conjecture and
place it within the field of legitimate inference . . . ." Denman v. Denman, 242 Miss. 59, 66, 134 So. 2d
457, 459 (1961).

¶8. We do not believe that the circumstances of this case, standing alone, are sufficient to give rise to a
reasonable inference that Weathersby Chevrolet was, in some undetermined way, negligent in its effort to
repair the truck. It is essentially undisputed that Redd Pest Control brought the truck in complaining of a
specific malfunction with the air conditioner and that the complaint was satisfactorily repaired insofar as
anyone could detect at the time. The air conditioning unit, in the testimony of Redd Pest Control's own
employee, was returned to working order and functioned properly for approximately one week and over
the course of some 310 miles of driving. The mere fact that, after passage of that much time accompanied
by rather extensive use of the truck without incident, a fire broke out in the same area where the control unit
was replaced is not, in the view of this Court, strong enough evidence to support a reasonable inference of
negligence on either of Redd Pest Control's competing theories of negligence, i.e., (a) that insulation was
accidentally scraped away from the control unit's connecting wiring, thereby exposing bare wires that
eventually shorted out, or (b) that there was some pre-existing wiring problem that the Weathersby
Chevrolet mechanic should have discovered and repaired but did not. These theories cannot, on these facts,
rise beyond possible explanations of the cause of the fire. As was pointed out in Berry v. Brunt, it is not
enough that the evidence is merely consistent with the plaintiff's theory of the accident, since that establishes
only the possibility of causation, and the Mississippi Supreme Court "has repeatedly held that in trials under
the common law, to prove a 'possibility' only, or to leave the issue to surmise and conjecture, is never
sufficient to sustain a verdict in a tort action." Berry v. Brunt, 252 Miss. 194, 203, 172 So. 2d 398, 402
(1965).

¶9. In apparent recognition that the evidence alone was insufficient to make out a case of negligent repair,
Redd Pest Control called an automobile mechanic as an expert witness to offer his opinion as to those acts
of negligence committed by the Weathersby Chevrolet mechanic in effecting the air conditioning repair job.
This expert witness did not view the truck in the aftermath of the fire, but formed the basis of his opinion
testimony on the examination of photographs of the truck, the vehicle repair order, and his review of the
deposition of the Weathersby Chevrolet mechanic.

¶10. This expert first offered the opinion that the Weathersby Chevrolet mechanic may have repaired a
problem that did not exist. He based this upon his reading of the repair order that the air conditioning unit
fan was "going high and low on its own." He testified that erratic blowing speeds demonstrated a wiring
problem rather than a problem with the control panel itself. He dismissed the fact that the replacement of the
control panel seemed to fix the problem by suggesting that the pulling and tugging on the wiring necessary to
accomplish the replacement of the unit may have temporarily stabilized the wiring defect until it was once
again exposed by the agitation associated with driving the vehicle over the next week. The most readily
apparent problem with this testimony is that the repair order does not reflect a problem with erratic blowing
speeds. It quite plainly states "a/c blower cuts on and off on its own." This misreading of the language of the
repair order by Redd Pest Control's expert negates any probative value that might otherwise attach to his
opinion that the problem was in the truck's wiring and not in the control panel unit itself. An expert witness's
opinion must be founded upon facts or data "perceived by or made known to him at or before the hearing."
M.R.E. 703. In this case, the expert's opinion of one possible cause of the air conditioning misfunction was
based upon an assumed fact that did not exist. Whether his opinion would have been the same had he
understood that the blower was cutting on and off on its own rather than merely changing speeds erratically
is something that is beyond this Court's ability to measure.

¶11. Alternatively, this expert suggested the possibility that the Weathersby Chevrolet mechanic damaged
the insulation on the wiring connecting the control unit by pulling the unit out too far while in the process of
changing out the unit. However, he conceded in cross examination that he had no factual basis to suppose
that the Weathersby Chevrolet mechanic had used anything other than due care in his handling of the wiring
and that it was necessary to pull out the wiring in order to replace the control unit. Thus, there is nothing in
the evidence to advance this alternate theory of the cause of the fire beyond a mere possibility at best.

¶12. This expert's testimony, when viewed in its entirety, appears to be nothing more than a speculative
exercise delving into a number of possible causes of the fire, none of which was anymore likely than another
to have occurred and none of which excluded the possibility that the fire was caused by some as-yet
unknown defect in the truck that was not related in any way to the air conditioning system.

¶13. We find the evidence for the plaintiff insufficient as a matter of law to support the jury's finding that
some negligent act of the Weathersby Chevrolet mechanic proximately caused the fire that destroyed the
truck. Rather, we conclude that the jury's verdict was based upon nothing more than speculation and
conjecture as to the cause of the fire. Such a verdict may not be permitted to stand.

¶14. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY ON
CHANGE OF VENUE FROM MADISON COUNTY IS REVERSED AND RENDERED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

SOUTHWICK, P.J., IRVING, MOORE, AND THOMAS, JJ., CONCUR. DIAZ, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., BRIDGES, AND LEE.
PAYNE, J., NOT PARTICIPATING.

      DIAZ, J., DISSENTING:

¶15. I respectfully dissent from the majority's decision to overturn the jury verdict which awarded Redd
Pest Control $18,217.39 for negligent repairs made on one of its trucks.

¶16. I do not agree with the majority's assertion that the jury used unsound logic, i.e., post hoc ergo
propter hoc, to decide that Weathersby negligently repaired Redd Pest Control's truck, and thus, failed to
prove one of the four elements of negligence. It is equally logical, and more consistent with the verdict of the
jury, to assume the jury relied upon res ipsa loquitur in awarding damages to Redd Pest Control.
However, our standard of review does not permit us to enter the jury box and the mind of each juror as he
or she reviews the evidence, deliberates and reaches a verdict. Instead, the sanctity of jury verdict is
preserved through our deference to the findings of a reasonable jury when fair minded men and women in
the exercise of impartial judgment might reach different conclusions.

¶17. The majority finds that, as a matter of law, the evidence was insufficient to support the jury verdict.
However, an examination of the elements of negligence and the standard of review employed by this court
compels a different result.

¶18. It is well established that there are four elements necessary to prove a claim of negligence:

      1. A duty, or obligation, recognized by law, requiring the person to conform to a certain standard of
      conduct, for the protection of others against unreasonable risks.

      2. A breach of the duty, a failure on the person's part to conform to the standard required.

      3. A reasonably close causal connection between the conduct and the resulting injury.

      4. Actual loss or damage resulting to the interests of another.

Carpenter v. Nobile, 620 So. 2d 961, 964 (Miss. 1993).

¶19. If the evidence is conflicting, the jury is the sole judge of credibility of the witnesses and the weight of
their testimony. In re Estate of Dabney, 740 So. 2d 915; Illinois Cent R. Co. v Clinton, 727 So. 2d 731
(holding that if facts are in dispute, jury is given authority to resolve them). A directed verdict should be
granted only where the facts and inferences so considered point so overwhelmingly in favor of the moving
party that reasonable men and women could not have arrived at a verdict for the non-movant. Dawson v.
Townsend & Sons, Inc., 735 So. 2d 1131. Similarly, if facts and inferences point so overwhelmingly in
favor of the JNOV movant that reasonable men could not have arrived at a contrary verdict, motion should
be granted, but if there is substantial evidence opposed to the motion, that is, evidence of such quality and
weight that reasonable and fair minded 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. K-Mart Corp. v. Hardy, 735 So. 2d 975.

¶20. I disagree with the majority's finding that the evidence presented to the jury was insufficient to support
a jury verdict against Weathersby for negligent repair of Redd Pest Control's truck. A review of the
evidence indicates that sufficient evidence was presented by Redd Pest Control to support the jury's
verdict. The subject truck was taken to Weathersby to have the air conditioning control panel replaced after
it was determined that it was the source of the malfunction. Three and one-half business days later and 310
miles after the repair work was completed, the driver saw smoke filtering out of the dashboard. After he
made an emergency stop, fire engulfed and ultimately destroyed the truck. Darrell Shavers, the mechanic
who worked on the subject truck, testified that he checked the freon level, several fuses and the air
conditioning control panel which he replaced. Shavers demonstrated on the in-court exhibit how he
replaced the unit. He also admitted that his deposition and courtroom testimonies varied considerably about
what steps he took to diagnose and resolve the problematic air conditioning in the subject truck.

¶21. The expert witness Harold Watts read depositions, reviewed photographs of the burned truck and
listened to in-court testimony and then testified that Shavers should have checked the battery junction and
all other connectors as stated in the training manuals. Watts states these tests were necessary to determine
the cause of the problem, i.e., a wiring circuitry problem, a loose connection, a frayed wire, or two current
carrying wires. Watts demonstrated that by pulling the control panel out of the dash, the wires and the
harness which held them were moved across the metal frame exposing them to either being cut or frayed
when pulled and moved from the factory location. Watts conceded that in order to fix the control panel, the
wires and harness had to be disturbed but not to the extent that Shavers demonstrated in court.

¶22. Since Redd Pest Control produced enough evidence to create a jury question regarding negligence on
the part of Weathersby and this question was resolved by a reasonable and fairminded jury, I would affirm
the verdict in this case.

KING, P.J., BRIDGES AND LEE, JJ., JOIN THIS SEPARATE OPINION.
