Opinion
September 27, 1948.
1. Insane person — process, service upon.
In an action of debt in which a person who had been adjudged insane was a defendant, summons was issued for him and for his guardian and was served on the guardian but the ward not being found, a copy was left for him with the guardian, and later an alias summons for the ward and for the guardian was issued and served on the ward but not upon the guardian: Held sufficient and that the service did not have to be simultaneous.
2. Instructions — misleading erroneous.
When there is only one theory of a case supported by any testimony by which a verdict for the plaintiff may be sustained, an instruction which would be likely to mislead the jury as to that issue will be held to be erroneous.
3. Instructions — questions of law not to be submitted.
An instruction that if the jury find that the defendant is indebted to the plaintiff they shall find for the plaintiff is erroneous in that it did not submit issues or questions of fact but only legal conclusions to be arrived at by the jurors and not by the court.
4. Evidence — previous course of conduct.
When the only theory by which a verdict for the plaintiff may be sustained is that he relied and acted on a statement by the defendant to the plaintiff that he, the defendant, would pay any draft drawn on him by a named third person for the purchase of cattle from plaintiff, denied by the defendant, evidence that defendant had previously paid several of such drafts would be relevant on the stated issue but of itself would not establish agency on the part of the third person.
5. Evidence — statements by active part owner of a business.
Statements alleged to have been made to plaintiff by a person alleged to be a part owner of a business and an active participant therein, which statements would bind another part owner, are competent, but only upon proof that they were actually made, by an authorized person.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Lamar County, J.C. SHIVERS, J.
Harris Sullivan, E.F. Coleman, and Gillespie Minniece, for appellant.
The court held in the case of Potts v. Hines, 57 Miss. 735, that in suits against lunatics, both the lunatic and his guardian must be served with process. To contend that the constructive service of process is good on a lunatic defeats the purpose of this statute; and certainly it was not contemplated that by delivering two copies of a summons to the guardian, a lunatic is thereby effectively served.
In the case of Perry v. Nolan Maris, 131 So. 252, 159 Miss. 384, the court held that if the process is defective as to the local defendant, the defendant who was not a resident of the county where the suit was brought was not subject to suit there and a judgment rendered against him was void, the court saying, "If no defendant is served with process in the county in which the suit is brought, the jurisdiction of the court does not attach."
The court permitted the appellee to offer evidence that Albert Davis had drawn drafts on Owen Bros. Union Stock Yards in transactions prior to the one sued for. It is submitted there is no evidence that any of said transactions indicated anything other than Albert Davis had drawn drafts, and under the erroneous instructions hereinafter to be mentioned, we submit that this testimony was highly prejudicial, in that the jury could have inferred that, since these other drafts had been paid, the plaintiff was entitled to judgment on the drafts given in the transactions sued for.
The trial court found that no agency had been established and that Albert Davis was not the agent of appellant, Owen Bros. Union Stock Yards in the purchase of the cattle. The court instructed the jury that they could not find a verdict in favor of the plaintiff on the theory that Albert Davis was an agent of Owen Bros. Union Stock Yards. See Dixie Stock Yards, Inc. v. Ferguson, 4 So.2d 724, 192 Miss. 166.
The Dixie Stock Yards case shows that G.C. Beavers was an independent buyer, the same as Albert Davis was an independent buyer who sold through the appellant's stock yard at Hattiesburg, Mississippi. The court reversed the judgment rendered in behalf of Ferguson in the Dixie Stock Yard case, but did hold that it should have been submitted on the theory that there was sufficient evidence for Dixie Stock Yards, Inc. to be charged with notice that the purchase price of the cattle had not been paid, and that in putting the cattle through their auction, they participated in a conversion of the cattle, and the court held that Dixie Stock Yards, Inc., as a livestock commission merchant conducted such auctions as were conducted by appellant, did not take title to the cattle.
We respectfully submit that the declaration in the case at bar is not framed on any theory of conversion of cattle, and for that reason the case should not have been submitted to the jury, but a directed verdict should have been given the appellant, Marvin Owen, trading as Owen Bros. Union Stock Yards. But taking the most favorable view of the Dixie Stock Yard case, that is to say the one most favorable to the appellee in this case, the case should not have been submitted to the jury on any theory of conversion, leaving out any consideration as to whether or not the declaration was sufficient in that regard. We have reference to the absolute failure of any proof that the cattle bought by Albert Davis from the appellee, Sumrall's Community Sales, Tylerton, Mississippi, ever reached the Owen Bros. Union Stock Yards' yards.
The appellee, G.W. Sumrall, Jr., testified that he did not know where the cattle that he alleges he sold to Davis were taken and he does not know, according to his own testimony, whether or not they went to Owen Bros. Union Stock Yards.
It is true that 65 head came into the appellant's yard on December 14 and were possibly some of the cattle sold by the appellee to Albert Davis at the appellee's auction ring on December 11 or December 12, but it is just as possible that these cattle were all or a part of the cattle for which L.B. Felder is suing the appellant in the same court, or it may have been other cattle that Albert Davis already had or bought from other people. We submit that judgments of courts cannot be sustained on any such evidence as is reflected by this record, and that the court should have sustained the appellant's motion for a peremptory instruction, particularly in view of the fact that the lower court found, as a matter of law, that Albert Davis was not the agent of the appellant, Owen Bros. Union Stock Yards, in the purchase of the cattle sued for.
The appellant requested the court to grant the following instruction:
"The court instructs the jury for the defendant, Marvin Owen, trading as Owen Bros. Union Stock Yards, that the conversation between plaintiff and Marvin Owen at Meridian in the latter part of November, 1945, if you believe such conversation took place, is insufficient in itself to make Marvin Owen liable for drafts drawn by Albert Davis on Owen Bros. Union Stock Yards and payable to plaintiff."
We submit that the lower court erred in not granting said instruction, inasmuch as said testimony should not be the basis of a judgment, because there are no words whereby Marvin Owen agreed to pay any draft that Albert Davis might draw on him, even if the statute of frauds did not apply. Furthermore, if appellee contends that the import of the conversation between Marvin Owen and G.W. Sumrall, Jr. at Meridian, in November, is sufficient to charge appellant with any draft that Albert Davis might draw on him, then such testimony is unworthy of belief because no sane person would make any such commitment and, therefore, if that be the alleged import of such testimony, then it is not credible and is unbelievable on its face.
The court erred in granting to appellee the following instruction: "The court instructs the jury for the plaintiff, G.W. Sumrall, Jr., trading as `Sumrall Comumnity Sales' that if you believe from a preponderance of the evidence that the defendants are indebted to the plaintiff for cattle sold and delivered by the plaintiff to the defendants, then it is your sworn duty to return a verdict for the plaintiff and to fix the amount of the indebtedness at such sum as you may find from the evidence to be due."
This instruction is erroneous in that it assumes that the plaintiff sold and delivered the cattle to the defendants, and said instruction does not place upon the plaintiff the burden of proving that the cattle were sold and delivered. The burden is whether or not the defendants are indebted to plaintiff "for cattle sold and delivered by the plaintiff to defendants." Said instruction is faulty in that it assumes the fact of the sale and delivery of the cattle by the plaintiff to the defendant.
The above instruction submits a mixed question of law and fact, without instructing the jury as to the law or as to the facts that would constitute a sale and delivery of property. We submit it is error to submit a mixed question of law and fact to the jury without instructing them as to the law. See Young v. Power, 41 Miss. 197; Baldwin v. McKay, 41 Miss. 358.
Appellant says further that the above quoted instruction granted to the plaintiff is especially objectionable, in that it does not define on what circumstances the defendant, Albert Davis, might be liable and under what circumstances the appellant, Marvin Owen, trading as Owen Bros. Union Stock Yards, might be liable. Certainly, under the facts of this case, appellant's liability cannot be fixed on the same facts and law as determine the liability of Albert Davis. Is not this instruction an invitation to the jury to believe that if either of the defendants is liable, the other is also liable; or, in other words, could not the jury infer that since there was liability or an indebtedness on the part of Albert Davis that the appellant was also liable, inasmuch as the court did not see fit to differentiate between the two defendants?
The above quoted instruction is also objectionable and erroneous in that it submits to the jury the legal question of indebtedness of the defendants without defining such facts as would constitute an indebtedness.
The court granted to appellee the following instruction: "The court instructs the jury for the plaintiff that if you believe from the evidence that the defendant, Marvin Owen, and Owen Bros. Union Stock Yard, had full knowledge of all the material facts affecting their rights and liabilities growing out of the agreement sought to be enforced in this suit against them by the plaintiff, and that with such knowledge the defendants received the benefit of the agreement, and that the agreement was made on their behalf, then the court instructs the jury that the defendants are precluded by the acceptance of such benefits from questioning the pretended agent's authority in the transaction."
We are unable to determine either the meaning or the effect of this confusing and misleading instruction. Certainly, it is not based upon any facts in this case and has no basis as an instruction under any theory which the plaintiff did or could have sued upon in this suit. Marvin Owen had no knowledge of the non-payment of the purchase price of these cattle prior to the sale of the cattle in appellant's yard on December 14, 1945. Then, what place has language, "had full knowledge of all the material facts affecting their rights and liabilities growing out of the agreement sought to be enforced in this suit against them be the plaintiff, and that with such knowledge the defendant received the benefit of the agreement," in the instruction to the jury in this case? It could have no other purpose than to confuse and mislead the jury in this case. It is conclusively shown that while the appellee sued for and the jury rendered a verdict for 123 head of cattle, only 65 head of cattle ever came into appellant's yard, and that these were received and sold before knowledge of the appellee's drafts was brought home to the appellant. How then could the jury be instructed as to the appellant receiving the benefit of some agreement when, as hereinabove indicated, there is not one syllable of admissible evidence that the cattle sold, or alleged to have been sold to Albert Davis by the appellee, ever reached the appellant's possession. This instruction reads as if it were lifted as an abstract principle of law from some textbook, and it is certainly not applicable to this case, and as was held in Lombard v. Martin, 39 Miss. 147, and in Robinson v. Spears, 21 So. 554, and many other cases, an instruction must not only be correct when considered as an abstract proposition of law, but it must expound the law correctly as applicable to the evidence in the cause, without being guilty of misleading the jury. See. McLeod Lumber Co. v. Anderson Mercantile Co., 62 So. 274, 105 Miss. 498.
We have been searching for an expression from the appellee's counsel as to what theory they sought to uphold this judgment, and if it is their theory that Owen was indebted to Sumrall for cattle bought, then where is the evidence that Marvin Owen bought cattle from the appellee? There is no contention that Marvin Owen personally appeared at appellee's auction and purchased any cattle, therefore, he could only have purchased through an agent, if he purchased at all. They make no claim or contention of agency and the court ruled out in its instructions any question of agency. Then how could Marvin Owen, trading as Owen Bros. Union Stock Yards, have purchased any cattle if he did not do it personally and did not do it through an agent: If the testimony be stretched to the point where it could be said that the sixty-five head of the specific cattle were received by Marvin Owen, they were received for the account of Albert Davis, and the testimony is absolutely clear that he did not know of the Sumrall drafts until the cattle had been sold to third parties and disposed of in the usual course of business for the account of Albert Davis, and there could be no liability on any theory of receiving these cattle when Marvin Owen acted only as a commission merchant.
Breed O. Mounger and T.W. Davis, Jr., for appellee.
The appellant urges the court that the judgment rendered was void for the reason that the resident defendant, Albert Davis, was not legally served with process.
The entire argument of appellant is confined to the question of the sufficiency of the substituted service on Albert Davis appearing on Page 29 of the record. Appellant states in his brief that no other process was ever served upon the defendant, Albert Davis, except the process appearing on Page 29 of the record and upon which substituted service was had. On the contrary we find that the defendant, Albert Davis, was personally served with process in this action, under the amended declaration. Page 43 of the record clearly shows that on March 1st, 1947, process was issued for the defendant, Albert Davis, and further that personal service was had on the said defendant on March 10th, 1947 with return reflecting such service in statutory form signed by T.W. Cooper, Sheriff of Lamar County, Mississippi. Page 29 of the record clearly reflects that process was issued for and personal service had upon Mrs. Albert Davis, guardian of the estate of Albert Davis, non compos mentis.
We submit, therefore, that the record clearly shows that there was personal service of process upon both Albert Davis and his guardian.
We submit that the court below did not commit reversable error in admitting testimony as to similar transactions between the parties immediately prior to the occurrence of the transactions sued upon. The evidence in question was admissible to show the general plan of dealing between the parties, the existing relationships and that the course of conduct on the part of the defendants on the occasions of the transactions complained of was in perfect accord with a continuous and systematic course of conduct established in a continuous chain of prior business transactions identical in nature.
The plaintiff introduced evidence of the continuous, systematic identical transactions between the parties from the date of the first transaction on November 6th, 1945, regularly at the plaintiff's weekly sales through the sale of December 4th, 1945, which was the sale immediately preceding the first of the transactions complained of on December 11th, 1945. Further establishing the materiality of these transactions the plaintiff testified that as a result of the same and immediately prior to the first of the transactions complained of he inquired directly of the defendant, Marvin Owen, as to the authority and relationship of the defendant Albert Davis. At page 82 of the record Mr. Sumrall testified as follows:
Q. State whether or not you had an occasion to talk with Mr. Marvin Owen relative to transactions with Albert Davis? A. Yes.
Q. Tell the court and the jury when that was and who was present and what was said, please sir. A. It was sometime the latter part of November, Mr. Beckner, who was driving for me at that time and I — we were going to Kosciusko to buy some milk cattle and we spent the night at Meridian, and we went down to Marvin Owen's office the next morning and I asked him about Davis buying cattle for him over at Tylertown and I asked "whether his drafts on you are O.K.," and he said, "Yes, the old fellow got in bad shape and I was helping him out and when his drafts aren't good I'll let you know."
The above testimony was corroborated by H.D. Beckner.
In the case of Sample v. Romine, 8 So.2d 257, this court held evidence of past similar transactions between the parties was competent to throw light on the general plan of the parties in procuring and handling oil and gas leases. In the opinion the court cites the case of Bernheim v. Dibrell, 5 So. 693, 66 Miss. 199.
The rule as to the admissibility of evidence as to the course of conduct dealing is presented in 32 C.J.S. paragraph 581, Page 437.
We quote the instruction granted the appellee and complained of here by the appellant.
"The court instructs the jury for the plaintiff, G.W. Sumrall, Jr., trading as "Sumrall Community Sales" that if you believe from a preponderance of the evidence that the defendants are indebted to the plaintiff for cattle sold and delivered by the plaintiff to the defendants, then it is your sworn duty to return a verdict for the plaintiff and to fix the amount of the indebtedness at such sum as you may find from the evidence to be due."
We submit that this instruction contains no assumption of fact. On the contrary the instruction requires that the jury believe from a preponderance of the evidence the elements of fact contained therein.
The appellant further contends that this instruction is erroneous for the reason that it does not define the circumstances of the separate liability of the two defendants. It is well settled that in considering instructions the instructions should be considered as a whole and that an instruction may be modified and clarified by one granted the opposite party where the instructions are not in conflict. This principle was announced by this court in Hunt v. Sherrill, 15 So. 426, 195 Miss. 688 and by a consistent line of decisions too numerous to mention. The appellant requested and was granted instructions clearly reflecting the right of the jury to return a verdict for the appellant, Marvin Owen, or, for both defendants, or, for the appellant, Marvin Owen and against his co-defendant, Albert Davis and the appellant was granted an instruction on the circumstances under which the jury was directed to find for both defendants.
Appellee submits therefore that the instructions taken as a whole clearly instructed the jury as to the determination of the case as to either or both co-defendants.
Appellee Sumrall, by action in the Circuit Court of Lamar County, sought and obtained a judgment against appellant Owen and Albert Davis in the sum of $3,291.87, and interest. That principal sum was the total purchase price of 103 head of cattle sold by Sumrall to Davis in three separate sales made December 11th, 12th and 18th, 1945. From that judgment Owen appeals here. Davis did not appeal; therefore, we deal with the case as made between Sumrall and Owen.
Owen argues nine alleged errors committed, as he contends, in the trial court. We pass only upon those necessarily involved in our disposition of the case.
Owen made a motion to transfer the case for trial as to him to Lauderdale County, of which he was a resident and householder. He contended that Davis, who was a resident of Lamar County, had never been served with process and was not in court, and that, therefore, he, being a resident and householder of Lauderdale County, could not be sued in this personal action in Lamar County. The trial court denied the motion. That ruling is assigned as error. These are the facts bearing upon that question:
The original declaration was filed March 23, 1946. Process issued that day for Davis and personal service was had upon him in Lamar County April 1, 1946.
On October 11, 1946, an amended declaration was filed. This was, as to grounds of liability, the same as the original declaration, but it further set out that on November 24, 1939, Davis had been declared a non compos mentis by the Chancery Court of Lamar County and Mrs. Albert Davis, his wife, was then appointed, and was yet acting, as the guardian of his estate, and Mrs. Davis as such guardian, was made a party defendant to the suit. The amended declaration asserted that Davis had regained his sanity and was then a normal person. On the day of the filing of the amended declaration process issued for Albert Davis and Mrs. Davis, his guardian, both being residents of Lamar County. On October 17, 1946, this was served personally on the guardian and a copy thereof served upon Mrs. Davis, at the usual place of abode of Davis in that County, she being the wife and a member of Davis' family, over sixteen years of age and willing to receive such copy, the return showing Davis not then found in Lamar County. March 1, 1947, summons issued to Lamar County for Davis and his guardian and Owen, and the return thereon shows personal service in that County upon Davis March 10, 1947, but does not show service upon his guardian. It is, therefore, seen that (Hn 1) summons was served personally upon Davis under the original declaration, to which his guardian was not then a party; that after the guardian became a party she was served personally and a copy left with her for her ward, and that later another summons issued for both the guardian and the ward and personal service duly had upon the ward. We think that sufficient to bring the guardian and the ward into court. They were not served at the same time with the process but both were duly served at different times. The service did not have to be simultaneous. It might be added, although we do not pass upon the effect of it, that the guardian duly appeared in person and by attorney in this case for herself and her ward and ably contested his liability for this debt.
Owen requested, but was refused, a peremptory instruction. He urges we should reverse the case and render judgment for him here. He says the record discloses no liability against him. This involves a consideration of the grounds of liability alleged in the declaration, the proof and procedure in the lower court. The declaration is in two counts. The first count grounded liability against Owen because, as was asserted, (1) Davis was the agent of Owen in the purchase of the cattle from Sumrall; (2) that Davis and Owen were engaged together in the business of purchasing the cattle; (3) that Owen held out Davis as his agent in such purchases; (4) that Owen accepted the benefits and ratified the acts of Davis in buying the cattle, and (5) a general allegation that in making each purchase Davis was acting as agent of Owen. The second count was in general terms and alleged that the cattle were sold to Owen at his special instance and request and he promised, but failed, to pay Sumrall the fair value thereof.
The Court instructed the jury that the proof failed to establish that Davis was the agent of Owen in the purchase of the cattle. The court was correct as to that. And we now add, without detailing the evidence, that it also fails to establish any other ground of liability against Owen set out in the declaration. This would call for reversal and judgment here for Owen except for the circumstances now to be related:
Davis undertook to pay for the cattle by issuing to Sumrall three drafts upon Owen aggregating $3,291.87, the total purchase price thereof. These drafts Owen refused to pay. But it is shown, without dispute, that during the months of November and December, and prior to the dates the cattle in question were purchased, Davis bought many other cattle from Sumrall and paid for them by drawing some five or six drafts upon Owen, which drafts were all paid. And the evidence on behalf of Sumrall further shows that, in the latter part of November, Owen personally informed Sumrall, in response to an inquiry made of Owen by Sumrall, that the ". . . old fellow (Davis) got in bad shape and I was helping him out and when his drafts are not good I will let you know." The same assurance was given Sumrall by Miss Page, bookkeeper and part owner of the Owen business, according to evidence on behalf of Sumrall. Sumrall says he sold the cattle and accepted the drafts upon that agreement, without notice that the drafts would not be paid by Owen. No objection was made to the competency of this evidence. Objection was made to showing what Miss Page said but this was based upon her lack of authority to make the statements. Sumrall requested, and was granted, this instruction:
"The Court instructs the jury for the plaintiff that if you believe from the evidence that the defendant, Marvin Owen, and Owen Brothers Union Stock Yard, had full knowledge of all the material facts affecting their rights and liabilities growing out of the agreement sought to be enforced in this suit against them by the plaintiff, and that with such knowledge the defendants received the benefit of the agreement, and that the agreement was made on their behalf, then the Court instructs the jury that the defendants are precluded by the acceptance of such benefits from questioning the pretended agents authority in the transaction."
This instruction apparently had reference to Sumrall's claim that Owen had agreed to pay Davis' drafts until Owen gave notice to the contrary. No other "agreement" on the part of Owen is shown.
Owen requested and was refused this instruction: "The Court instructs the jury for the defendant, Marvin Owen, trading as Owen Bros. Union Stock Yards, that the conversation between plaintiff and Marvin Owen at Meridian in the latter part of November, 1945, if you believe such conversation took place, is insufficient in itself to make Marvin Owen liable for drafts drawn by Albert Davis on Owen Bros. Union Stock Yards and payable to plaintiff."
The only other instruction granted the plaintiff, purporting to submit to the jury any issue to be determined by them, was one telling the jurors that if they believed ". . . from a preponderance of the evidence that the defendants are indebted to the plaintiff for cattle sold and delivered by the plaintiff to the defendants, then it is your sworn duty to return a verdict for the plaintiff and to fix the amount of the indebtedness at such sum as you may find from the evidence to be due." Incidentally, the granting of that instruction was, of course, erroneous. (Hn 3) It did not submit to the jury for determination any question of fact, or issues, upon which liability could be based, but submitted only the legal conclusion whether the defendants were liable. (Hn 2) It is mentioned here, however, in connection with the first two quoted instructions, to show that, although the declaration did not base liability as to Owen on his assurance he would pay the draft, apparently the case was tried mainly upon that theory.
It is true that Owen denied he gave any such assurance to, or had any such understanding with, Sumrall. But that was a question of fact for the jury. It was submitted to the jury, and, so far as we know, constituted the basis of liability of Owen as found by the jury's verdict.
Since the case may be retried we should pass upon two other questions which seemingly will arise on that trial.
(Hn 4) As above stated, objection was made to evidence on behalf of plaintiff that Miss Page said drafts drawn by Davis would be paid until notice to Sumrall to the contrary. The witnesses said she was the bookkeeper and part owner of the Owen stock yards, with which concern the business in question was being conducted. Those facts, if so found by the jury, would render her statements competent.
(Hn 5) Appellant contends that no evidence of drafts drawn by Davis upon Owen, payable to Sumrall, and paid by Owen, prior to the date of the drafts involved in this litigation, was competent. We think that evidence was relevant on this trial and will be relevant on another trial, if one is had, grounded upon the existence or nonexistence of an agreement of Owen to pay drafts drawn by Davis upon him in favor of Sumrall in payment of the price of cattle purchased by Davis from Sumrall until Owen should notify Sumrall to the contrary.
Reversed and remanded.