Summary
In Long, the court wrote that, "[w]hatever we may think of this as a moral proposition," there is "no duty imposed by law upon any person to warn another of an approaching of impending danger to the latter, when the person sought to be charged had and has nothing to do with putting into operation, or with the continuance in operation of, the dangerous agency which approaches...." Long, 198 Miss. at 561, 22 So. 2d at 492.
Summary of this case from H.R. v. Double J Logistics, LLCOpinion
No. 35887.
June 11, 1945. Suggestion of Error Overruled September 24, 1945.
1. TRIAL.
All evidence and all the reasonable inferences that may be drawn therefrom are to be taken as true in favor of party against whom peremptory charge is asked.
2. AUTOMOBILES.
In action for death of tractor operator in collision with truck traveling in the same direction, evidence was sufficient to take case to jury as against owners and driver of truck.
3. NEGLIGENCE.
A person who had nothing to do with putting into operation or continuing in operation the dangerous agency is under no duty to warn another of approaching or impending danger.
4. TORTS.
Realization that action is necessary for another's aid or protection does not of itself impose a duty to take such action, but if one undertakes to render such service, though gratuitously, and the other person reasonably relies on performance of the undertaking, liability may result.
5. INFANTS.
A minor cannot be held liable in tort for faults of omission, where the duty to act otherwise must find its basis in an agreement by the minor.
6. VENUE.
Since a 14-year-old boy who agreed to warn operator of tractor of approaching traffic could not be held liable in tort for failure to do so, boy was not a real party to action against him and driver and owners of truck which collided with tractor for death of operator of tractor, and venue of action could not be maintained in county of boy's residence as against motion of the other defendants for change of venue to county of their residence (Code 1942, sec. 1433).
7. VENUE.
The right of a citizen to be sued in county of his residence is a valuable right, and venue of civil action against several defendants must be laid in the county of residence of a material defendant (Code 1942, sec. 1433).
8. VENUE.
The allegations of declaration are not conclusive on the question of proper venue of action, but the true facts may be shown by plea or on motion or by both (Code 1942, sec. 1433).
9. VENUE.
Venue in a civil action should be changed at request of party entitled thereto whenever the condition therefor arises (Code 1942, sec. 1433).
10. VENUE.
The good faith of plaintiff in joining a resident of county in which action is commenced as a party defendant to action against residents of another county is material only where the facts of liability vel non against resident defendant are involved in a complicated set of circumstances from which, when fully developed, more than one reasonable conclusion might be drawn by jury or where because of nice distinctions to be applied as a matter of law, it cannot be told in advance of a full development of the case whether resident defendant will be held liable by the court (Code 1942, sec. 1433).
APPEAL from the circuit court of Prentiss county, HON. THOS H. JOHNSTON, Judge.
Mitchell Clayton and John R. Anderson, all of Tupelo, and E.K. Windham and Donald Franks, both of Booneville, for appellants.
The right of a citizen to be sued in the county of his residence is a valuable right, not a technical right. Venue depends upon the actual existence of cause of action against the resident defendant.
Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281; Trolio v. Nichols, 160 Miss. 611, 133 So. 207; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Howard v. Ware, 192 Miss. 36, 3 So.2d 830, 140 A.L.R. 1284.
No cause of action was alleged or proved against Cecil Jones. An infant is not liable for a tort connected with or resulting from breach of a contract.
Savage v. Prudential Life Ins. Co. of America, 154 Miss. 89, 121 So. 487; Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; Ferguson v. Bobo, 54 Miss. 121; Brown v. Wood, 293 Mich. 148, 291 N.W. 255, 127 A.L.R. 1436; Vasse v. Smith, 6 Crauch 226; 27 Am. Jur. 814.
There was no duty on the part of Cecil Jones to protect the life or property of decedent, if the relation of guest existed.
20 R.C.L. 8; 5 Am. Jur. 634; 45 C.J. 713.
No negligence was shown on the part of Cecil Jones on either motion to transfer. There are no presumptions as to capabilities of infants in the commission of negligence.
Charbonneau v. McRury, 73 A.L.R. 1266; 31 C.J. 1034; 27 Am. Jur. 814.
The defendants were entitled to a directed verdict. Verdicts must be based upon substantial evidence, not upon guesses or surmises.
Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; Missouri Pacific Transport Co. v. Beard, 179 Miss. 764, 176 So. 156; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Mutual Benefit Health Accident Association v. Johnson (Miss.), 186 So. 297; Kramer Service Co. v. Wilkins, 184 Miss. 483, 186 So. 625; Code of 1942, Secs. 8176, 8236.
The verdict was excessive and shows the jury did not diminish the damages in proportion to Patterson's gross, contributory negligence.
Tendall v. Davis, 129 Miss. 30, 91 So. 701; Gulf S.I.R. Co. v. Bond, 181 Miss. 254, 179 So. 355.
Cunningham Cunningham, of Booneville, for appellees.
The appellant, Haskell Martin, driver of the truck, said he was keeping a constant lookout ahead with good lights and good brakes and ran into this tractor in the highway where it was straight and level. He is charged by the law of seeing the tractor on the concrete ahead of him.
Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; State for Use of Thompson v. Cloud, 150 Miss. 697, 116 So. 814; Christian v. Illinois Cent. R. Co. (Miss.), 12 So. 710; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; 38 Am. Jur. 854, Sec. 178, p. 900, Sec. 218; 45 C.J. 981, Secs. 533, 539, and notes on page 984; 1 Blashfield, Cyclopedia of Automobile Law and Practice, p. 493, Sec. 682.
It was the duty of Haskell Martin to have slowed down immediately upon becoming blinded and his failure to do so negligently contributed to the injury and death of plaintiff's decedent.
Terry v. Smylie, 161 Miss. 31, 133 So. 662.
The appellant, Haskell Martin, admitted that he was operating his cattle truck at a high and unlawful rate of speed.
Cecil Jones and plaintiff's decedent Patterson were carrying out a necessary joint enterprise, and Cecil Jones owed Patterson the duty to notify him of approaching danger.
Yazoo M.V.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; Avent v. Tucker, 188 Miss. 207, 194 So. 596.
Cecil Jones owed a duty to plaintiff's decedent Patterson.
Sunflower Compress Co. v. Clark, 165 Miss. 219, 144 So. 477; Camp v. Roanoke Guano Co., 235 Ala. 61, 177 So. 343; 2 Am. Jur. 220, Sec. 275; 38 Am. Jur. 659, Sec. 17; 2 C.J. 722, Sec. 384; 2 Restatement of the Law, Torts, p. 873, Sec. 323; 2 Restatement of the Law, Agency, Secs. 378, 835.
Cecil Jones was seated on the back of the tractor under an agreement to watch and notify plaintiff's decedent of approaching danger and owed not only a duty to Patterson but a duty to the traveling public as well. Proximate cause included all parties including the general public.
45 C.J. 918, Sec. 484.
Appellants erroneously contend that this breach of duty on the part of Cecil Jones does not bind him for the reason that he was a minor and could not be charged with a tort for his negligence.
Ferguson v. Bobo, 54 Miss. 121; 27 Am. Jur. 812, Sec. 90.
The agreement that Cecil Jones would render this cooperation with plaintiff's decedent in exchange for a ride on the tractor was a binding contract.
28 Am. Jur. 759, Sec. 17.
Cecil Jones is charged with the commission of a tort and not the breach of a contract and is liable.
Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So.2d 791.
These appellants cannot successfully urge error against the court on Cecil Jones' non-liability as a defendant for the reason that they invoked the negligence of Cecil Jones as Patterson's agent and induced the court to submit to the jury a reduction of damages on account of Cecil Jones' negligence as an agent of Patterson. They cannot take advantage of Jones' agency and negligence in their own behalf and at the same time denounce it on behalf of these plaintiffs.
M. A. Motor Freight Lines, Inc., v. Villere, 190 Miss. 848, 1 So.2d 788; Yazoo M.V.R. Co. v. Wade, 162 Miss. 699, 139 So. 403.
Patterson, plaintiff's decedent, was fifty-one years old, had a very high earning capacity for a farmer, was industrious and was a kind husband and father and contributed much to his wife and children both in material and companionable relations. A verdict for $25,000 to $30,000 would have been justified by the proof.
Argued orally by Guy Mitchell, Sr., for appellant, and by Jas. A. Cunningham, for appellee.
About nine o'clock on the evening of May 25, 1944, appellees' decedent, John Patterson, was driving a farm tractor northward on paved highway No. 45 in Prentiss county. The tractor carried no lights. Riding on the rear fender of the tractor was a boy named Cecil Jones, fourteen years of age. The declaration alleged that Jones "agreed and promised the said John Patterson . . . that he would exercise all diligence and care to give Patterson timely notice of all approaching traffic, and plaintiffs' said decedent relied upon the promise and undertaking of said defendant (Cecil Jones) in the course of travel by tractor on said highway." The declaration avers that a cattle truck driven by the defendant Martin approached from the south at a reckless and dangerous rate of speed, and that although Martin saw the tractor in the road ahead of him, he disregarded it nevertheless and ran into and upon the tractor with the result that appellees' decedent, the driver of the tractor, was killed; that Jones on the tractor who had agreed to give warning failed to do so until it was too late to turn the tractor off the road, which could have been done, avoiding injury, had Jones given warning of the approach of the cattle truck in time.
It is admitted that Martin was the servant of the other defendants, Long and Spicer, and that at the time he was engaged in the business of his employers and within the scope of his employment, and it is admitted that the defendants, Martin and Long and Spicer, were and all the while have been residents of Lee County, and that the boy, Cecil Jones, is a resident of Prentiss County. The action was brought in Prentiss County by joining the minor resident as a defendant. Before taking any other steps the nonresident defendants moved the court to order a change of venue to Lee County on the ground that there was no cause of action against the minor and that he was joined only for the purpose of venue in his county. At this time no plea had been filed by the minor raising the defense of minority, and there was no mention in the declaration that Joes was a minor. When the minor's plea came in setting up the defense of minority, the non-resident defendants duly renewed their motion for a change of venue, which was overruled. On the trial a verdict and judgment was rendered against the non-resident defendants, but the verdict was in favor of the minor defendant.
The first question which must be determined is whether the non-resident defendants were entitled to the peremptory charge requested by them. If so, the question of venue would disappear. Under the established rule that all evidence, and all the reasonable inferences that may be drawn therefrom, are to be taken as true in favor of the party against whom the peremptory is asked, we are unable to say that there is not enough here to go to the jury. And thus we are brought to the question of the change of venue, and this introduces two preliminary inquiries: —
(1) Is there a duty imposed by law upon any person to warn another of an approaching or impending danger to the latter, when the person sought to be charged had and has nothing to do with putting into operation, or with the continuance in operation of, the dangerous agency which approaches? Whatever we might think of this as a moral proposition, it is a question to which the settled law gives a negative answer. As stated in the Restatement, Vol. 2 Torts, Sec. 314, "the actor's realization that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." And an illustration is given as follows: "A sees B, a blind man, about to step into the street in front of an approaching automobile. A could prevent B from doing so by a word or touch without delaying his own progress. A does not do so and B is run over and hurt. A is under no duty to prevent B from stepping into the street and is not liable to B." But the rule is otherwise where the actor undertakes to render such service, although gratuitously, and the other person reasonably relies on the performance of the undertaking. 2 Rest. Torts, Sec. 325. There the liability arises out of the consent of the actor, express or implied, to be bound to the duty, but only by such consent.
(2) May an infant be bound by his consent given in such case? Here, too, the settled law answers in the negative. Many years ago in Ferguson v. Bobo, 54 Miss. 121, it was sufficiently pointed out that an infant cannot be held in tort for faults of omission when the duty to act otherwise must find its basis in an agreement by the infant. The modern authorities, in a sufficient number, are gathered in the opinion and annotations, Brown v. Wood, 293 Mich. 148, 291 N.W. 255, 127 A.L.R. 1436, and there it is shown that the test of liability against an infant for an alleged tort of omission is whether the case may be made out against him without the necessity of taking any notice of his contract or agreement. Lowery v. Cate, 108 Tenn. 54, 64 S.W. 1068, 57 L.R.A. 673, 91 Am. St. Rep. 744. In the present case the necessity exists, from which it follows that there is no liability against the infant and that he was no real party to the action. And this conclusion is not to be avoided by the arguments which have been made that there existed the relationship of master and servant between Patterson and the minor, or that they were engaged in a joint adventure, for these, and the like, are all consensual relationships, express or implied.
Section 1433, Code 1942, provides that civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and further provides that "if a citizen resident in 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." In Trolio v. Nichols, 160 Miss. 611, 612, 132 So. 750, 133 So. 207, we held that the right of a citizen to be sued in the county of his residence is a valuable right — one of importance to him, and that when there are several defendants and the action is brought in the county of the residence of only one of them, the latter must be a material defendant — a real defendant, not a mere straw man. And we further held in that case that the allegations of the declaration are not conclusive on the question of proper venue of the action, so that it follows that the true facts may be shown by plea or on motion or by both.
The steps here taken by the defendants entitled to the change of venue were substantially equivalent to those availed of in Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469. The plea of the only resident defendant raising the issue and defense of his minority was on file and the motion joined in by all the non-resident defendants to change the venue, specifically pointed out that the resident defendant "at the time of the alleged wrongs and injuries was a minor fourteen years of age: that the alleged negligence of the minor consists of a failure to give proper warnings to plaintiffs' decedent as plaintiff alleges he had contracted and agreed to do; that plaintiffs seek to establish liability against the said minor in an action of tort based upon a breach of contract; that if plaintiffs allegations should be established as true, no cause of action would lie against said minor." The testimony taken on the motion to change the venue disclosed without dispute, and without attempt to dispute, that the said local defendant, and sole local defendant, was a minor. The result was that, in limine, when the settled principles of law are applied, it was plainly shown that there was no cause and no possible cause of action against local defendant, and nothing remained for the court to do except to apply the rule laid down in Howard v. Ware, 192 Miss. 36, 42, 3 So.2d 830, 832, 140 A.L.R. 1284, that "venue in a civil action should be changed at the request of the party entitled thereto whenever the condition therefor arises"; and this is particularly true when the conditions have been clearly disclosed in limine as here.
Much has been said in various cases to the effect that in order to obtain a change of venue or the removal of a case to the county of the real defendants, it must be shown not only that there is no cause of action against the local defendant but in addition that he was fraudulently joined, and it is said that Weems v. Lee, 185 Miss. 98, 187 So. 531, so holds. It is significant to the contrary that the later case on this subject, Howard v. Ware, supra, does not mention the matter of fraud but rests upon the plain fact, without more, that no proof was made or attempted to be made against the resident defendant. By parity, if upon the introduction of a plain and undisputed simple fact in a case, as here, no proof can be made within the allegations of the declaration which will establish a cause of action against the resident defendant, the condition is the same in substance as if no proof was attempted to be made.
There are cases, of course, and Weems v. Lee, supra, is referable to that classification, where the facts of liability vel non against the resident defendant are involved in a complicated set of circumstances from which, when fully developed, more than one reasonable conclusion might be drawn by the jury or where because of nice distinctions to be applied as a matter of law it cannot be told in advance of a full development of the case whether the resident defendant will or will not be held liable by the court. In cases of this sort the good faith of the plaintiff is a pertinent issue, but not in a case such as is here before us when the crucial issue hinges upon a simple fact, plain and precise, and which in limine is proved beyond dispute. It is to this distinction that we adverted in the fifth paragraph of the opinion in Forman v. Mississippi Publishers Corp., supra, 195 Miss., page 103, 14 So.2d 344, 148 A.L.R. 469.
From what has been said it follows that the verdict and judgment in favor of the minor defendant, Cecil Jones, was correct, and the same is hereby affirmed as to him. But because of the error in refusing the order for the change of venue, the judgment is reversed and vacated as to the defendants, Martin and Long and Spicer, and the cause remanded.
Affirmed in part and in part reversed and remanded.