Opinion
No. 34457.
September 22, 1941. Suggestion of Error Overruled November 10, 1941.
1. VENUE.
Where motorist's automobile collided with truck owned by corporation which employed intestate who died as result of the collision, and action for death was brought against corporation and motorist in county of corporation's residence, and it was alleged that at the time of the collision intestate was accompanying corporation's president on a mission for the corporation within the scope of his employment, burden of negativing such allegation on a hearing of motorist's motion for change of venue was on the motorist (Code 1930, sec. 495).
2. VENUE.
Where intestate died as result of a collision between motorist's automobile and a truck owned by corporation which employed intestate, and action for death was brought against motorist and corporation in county of corporation's residence, and it was alleged that intestate was accompanying corporation's president on a mission for corporation within scope of his employment but no attempt was made to prove liability on part of corporation, allegations in declaration were not controlling, and motorist's request, renewed at close of plaintiff's case, for change of venue should have been granted (Code 1930, sec. 495.)
3. VENUE.
Where action for death resulting from collision was brought against motorist and corporation which employed intestate in county of corporation's residence, and motorist filed a plea to the merits after a motion for change of venue was overruled, and at the close of the case after the plaintiff had failed to prove liability on part of corporation, motorist again requested change of venue, entry of judgment against motorist and corporation did not deprive motorist of right to change of venue, nor did the filing of a plea to the merits after the original motion was overruled affect her right to change of venue (Code 1930, sec. 495.)
4. VENUE.
Venue in a civil action should be changed on request of the party entitled thereto whenever the condition therefor arises unless the right thereto has been waived.
5. VENUE.
Where motorist's automobile collided with a truck owned by corporation which employed intestate resulting in death of intestate, and action for death was brought against corporation and motorist in county of corporation's residence, and it was alleged but not proved by plaintiff that intestate was accompanying president of corporation on a mission for corporation within scope of his employment, error in overruling motorist's motion for change of venue renewed at close of plaintiff's case was not cured by corporation's evidence which disclosed that president was taking intestate on a journey for purpose wholly different from business of corporation, and that corporation was not liable for intestate's death (Code 1930, sec. 495.)
APPEAL from the circuit court of Washington county, HON. S.F. DAVIS, Judge.
Johnson Allen, of Indianola, Dugas Shands and Palmer Lipscomb, both of Cleveland, Ernest Kellner, of Greenville, and Brewer Hewitt, of Jackson, for appellant.
It is manifest from the record that C.P. Cole Flying Service, Inc., was joined as a defendant solely for the purpose of conferring jurisdiction on the Circuit Court of Washington County. No effort was made by the appellee in her direct evidence to fasten any liability on C.P. Cole Flying Service, Inc., but the sole purpose was to fasten liability on this appellant. Appellant is a householder and resident of Sunflower County, and under the provisions of Section 495 of the Mississippi Code of 1930, she had a right to have the venue of the action changed to the county of her household and residence.
We disagree with the trial court that the allegations of appellee's declaration are conclusive on the question of the proper venue of the action. Section 495 of the Code of 1930 provides, among other things, that if a citizen, resident of this state, shall be sued in any action not local, out of the county of his household and residence, the venue shall be changed on his application, before the jury is impaneled, to the county of his household and residence. The right of a citizen to be sued in the county of his residence is a valuable right; it is a right of importance to him — it is not a technical right. Where an action is brought in a county where any one of several defendants resides, the county must be one where a material defendant resides; he must be a proper party — he must not be joined for the sole purpose of giving the court of that county jurisdiction. If he is not a material defendant, and is joined as such by the plaintiff for the fraudulent purpose of giving the court jurisdiction, the cause will be dismissed or transferred to the proper county. 40 Cyc. 97 (and cases in the notes); 15 C.J. 800, and case notes; Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874. This is too valuable a right to permit the allegations of the plaintiff's declaration to be conclusive. Such a rule would furnish a convenient means for the plaintiff to fraudulently fix the venue of the action to suit his purposes.
Trolio v. Nichols, 160 Miss. 611, 133 So. 207; Nicholson v. G. M.N.R.R. Co., 177 Miss. 844, 172 So. 306.
By the refusal of the trial court to grant a change of venue to this appellant from Washington County to Sunflower County, the place of her household and residence, she was denied an important, valuable and material right, and the overruling of the two motions made by appellant for a change of venue was highly prejudicial to this appellant.
We are familiar with, recognize, and appreciate the rule of this court on motions for change of venue as stated in the case of Nicholson v. Gulf Mobile Northern R.R. Co., 177 Miss. 844, 172 So. 306; Trolio v. Nichols, 160 Miss. 611, 133 So. 207; and McRae v. Ashland Plantation Company, 187 Miss. 350, 192 So. 847. In the Nicholson case, the court speaking says among other things: "The right of a defendant to be sued in the venue fixed by statute is too valuable to permit it to be destroyed at the whim or will, or for the convenience of, a plaintiff, and a friendly defendant who may be joined. A lawful act does not become unlawful merely because it may be done by agreement between two parties, but if the purpose and result of the act is to defeat and destroy a right guaranteed by law to another, the act becomes fraudulent in its nature."
Sillers Roberts, of Rosedale, James O. Eastland, of Ruleville, Wynn, Hafter Lake, of Greenville, and Courtney C. Pace, of Cleveland, for appellee.
As to the venue of the suit, appellee had the right of election, a valuable right, whether to bring this suit in Washington County, the home of the defendant corporation, or Sunflower County, the home of appellant.
The case of Daniel v. Livingstone, 168 Miss. 311, 150 So. 662, is directly in point, and in this case the court said: "Applying this rule, we are of the opinion that Smith, the defendant living in Prentiss County, was properly joined in this declaration and as a material defendant, and the plaintiff has the statutory right to bring the suit in the County in which one of the defendants resides, where he does not do so for fraudulent purposes, or where the resident defendant is not a material defendant. This right is also valuable. The plaintiff selected the venue as he had a right to do; he could have sued in either County."
And also Nicholson v. Gulf Mobile Northern R.R. Co., 177 Miss. 844, 172 So. 306: "Separate actions may be maintained against joint tort-feasors, and the right to join them in one action is one for the convenience of the plaintiff, which he may exercise at his election."
Appellee's right to bring the suit in either Washington or Sunflower Counties was a valuable right. She had the right of election and chose Washington County. Appellant had no right to a change of venue unless the Cole corporation was not a material defendant, and all the proof showed that the corporation was jointly liable, a joint tort-feasor, its negligence being one of the proximate causes of the death of complainant's intestate. Appellee had the right to either sue the defendants separately or join both defendants in one action, which she chose to do.
The case of Trolio v. Nichols, 160 Miss. 611, 133 So. 207, cited by appellant is not in point, because the court in this case simply held that on questions of venue the allegations of the declaration are not conclusive of the venue of the suit. The decision of the court in the present case was not based on the allegations of the declaration, but upon the evidence.
The trial judge was the trier of the facts on the motion, heard all the testimony and overruled the motion. His judgment is conclusive unless manifestly wrong, and we submit that all the proof in this case shows that the automobile in which Ware was riding was operated by the corporation, on the business of the corporation, and that the president of the corporation was acting within the scope of his authority, and the corporation is liable. And further, that the corporation was a proper and necessary party to the suit. The case of Indianola Cotton Oil Company v. Crawley, 121 Miss. 262, 83 So. 409, is exactly in point and controls this case.
Argued orally by Dugas Shands and Ernest Kellner, for appellant, and by Jerome S. Hafter and J.O. Eastland, for appellee.
Highway 61 runs north and south through the town of Shaw in Bolivar County, at which place it is crossed by another highway running east and west, known as the Shaw-Indianola Road. In March, 1940, a motor truck going north on highway 61, in which the appellee's intestate, Linnie T. Ware, was a passenger, collided at this intersection with an automobile going west, owned and driven by the appellant, and Ware was killed thereby. He was employed by C.P. Cole Flying Service, Inc., the owner of the truck, as a bookkeeper, and C.P. Cole, who was driving the truck, is its president. The corporation is domiciled at Leland, in Washington County, in which county this action was brought against the appellant and the Cole corporation. A judgment was rendered against both defendants, and Howard alone appeals.
The appellant is a householder, and resides in Sunflower County. When the case came on for trial she applied for, but was denied, a change of venue to Sunflower County under Section 495, Code of 1930, alleging that the plaintiff had no cause of action against the Cole corporation, and that it was joined as a defendant for the sole purpose of enabling the plaintiff to have the case tried in Washington County. If this is true the venue should have been changed to Sunflower County.
The declaration alleges that Ware, at Cole's direction, was accompanying him on a mission for the corporation within the scope of his employment, and we will assume that if this is true the corporation would be liable for Cole's alleged negligence in driving the truck at the time Ware was killed. The burden of negativing this allegation on the hearing of the motion for a change of venue was on the movant, and we will assume, as the fact probably is, that she did not meet this burden.
At the trial on the merits the plaintiff closed her case without introducing any evidence tending to prove the allegation of her declaration hereinbefore stated. Whereupon the appellant again requested, but was denied, a change of venue.
The allegations of the declaration are not here controlling, Trolio v. Nichols, 160 Miss. 611, 612, 132 So. 750, 133 So. 207, and when the appellee rested her case without attempting to prove liability on the part of the Cole corporation the appellant's request for a change of venue should have been granted. This necessarily follows from Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281; Trolio v. Nichols, 160 Miss. 611, 612, 132 So. 750, 133 So. 207; Weems v. Lee, 185 Miss. 98, 187 So. 531. That the court permitted a judgment to be rendered against the Cole corporation does not deprive the appellant of her right to the change of venue, nor does the fact that she filed a plea to the merits after her motion for a change of venue was overruled. Had she filed this plea before moving for a change of venue a different question would be presented. Indianola Cotton Oil Co. v. Crawley, 121 Miss. 262, 83 So. 409. Venue in a civil action should be changed on request of the party entitled thereto whenever the condition therefor arises; Tucker v. Gurley, 176 Miss. 708, 170 So. 230; unless the right thereto has been waived, Indianola Cotton Oil Co. v. Crawley, supra.
It remained only to determine whether the error in overruling this motion was cured by evidence of the defendants, from which the jury could find that the quoted allegation of the plaintiff's declaration is true.
No such evidence was introduced by the appellant, but her co-defendant, the Cole corporation, introduced Cole as a witness in its behalf; and from his evidence it appears that he had endorsed a promissory note of Ware's, and that he and Ware wanted this liability of Cole on the note to be secured by a deed of trust on property owned by Ware; that Ware requested him to take him, Ware, to Ruleville, where they were going when Ware was killed, for the purpose of having an attorney residing there to prepare the deed of trust. In addition, he said that this attorney represented the Cole corporation in a pending lawsuit, and Ware intended to give him certain facts desired by him relative thereto, for use on the trial of the case. There was no evidence that Ware was directed by Cole to accompany him to Ruleville in order to give these facts to this attorney. On the contrary, the evidence clearly discloses that Cole was taking Ware to Ruleville at his request, for a purpose wholly disconnected from the business of the Cole corporation, and that giving the attorney information relative to the corporation's lawsuit was merely incidental to, and not the cause of, their journey; consequently no liability of the corporation under the law of master and servant arises.
The judgment of the court below will be reversed in so far as it affects the appellant, and the order which the court below should have made, changing the venue of the case to Sunflower County, will be entered here; and the case will be remanded for further proceedings on this order, of the same character that would have been required had the order been made by the court below.
So ordered.