Opinion
No. 33553.
April 3, 1939.
1. VENUE.
In action against city of Hattiesburg and owner of building for injuries sustained when awning extending over sidewalk fell, the city could not be deemed fraudulently joined as a defendant for purpose of depriving building owner of right to have venue changed from Forrest county to Lamar county, where Supreme Court had not determined whether a municipality is charged with duty of exercising reasonable care to prevent awning from falling and injuring persons using sidewalk (Code 1930, section 495).
2. MUNICIPAL CORPORATIONS.
In action for injuries sustained when awning extending over sidewalk fell, whether building owner failed to exercise reasonable care to prevent the awning from falling was for jury.
3. MUNICIPAL CORPORATIONS.
If children were accustomed to play on awning extending from building over sidewalk with building owner's knowledge, that fact entered into owner's duty to exercise reasonable care to prevent the awning from falling on sidewalk.
4. MUNICIPAL CORPORATIONS.
Where awning extended from building over sidewalk, duty of building owner to prevent awning from falling was not absolute, but only to exercise reasonable care to keep it in a reasonably safe condition.
5. MUNICIPAL CORPORATIONS. Trial.
In action for injuries sustained when awning extending from building over sidewalk fell, instruction that if children at times played on awning to building owner's knowledge and if playing on awning by children weakened its support, which facts could have been discovered by reasonable inspection, owner was under duty to repair awning and its support so as to make it strong enough that it would not fall, was erroneous but not reversible in light of other instructions given.
6. MUNICIPAL CORPORATIONS.
Owner's duty to exercise reasonable care to keep awning in safe condition began when he purchased building, and if awning was then in dangerous condition, it became his duty to exercise reasonable care to remedy defect therein, and it was immaterial who constructed building and awning.
7. MUNICIPAL CORPORATIONS. Trial.
In action against building owner for injuries sustained when awning extending over sidewalk fell, requested instruction that if fall of awning was caused by climbing and walking thereon by persons other than defendant he would not be liable therefor was properly refused, where it did not appear that any one was on awning at time it fell, and other instructions dealt with matter of use of awning by other persons at other times.
APPEAL from the circuit court of Forrest county; HON.W.J. PACK, J.
Rawls Hathorn, of Columbia, E.F. Coleman, of Purvis, and Cephus Anderson, of Hattiesburg, for appellant.
The court erred in overruling appellant's motion for a change of venue from Forrest County to the County of appellant's household and residence, Lamar County. The court erred in overruling appellant's motion made after appellee had rested his case and the jury had been peremptorily instructed to find for defendant, City of Hattiesburg, to exclude the evidence offered on behalf of plaintiff and enter a mistrial, and change the venue to the county of appellant's household and residence, Lamar County.
We submit with confidence that the record in this case, when viewed as a whole, shows clearly and without reasonable doubt, that the City of Hattiesburg was joined in this case as a party defendant, solely for the purpose of holding jurisdiction as against appellant out of the county of his household and residence.
We submit that the record conclusively shows that appellee perpetrated a fraud in law on appellant and that this fraud resulted in appellant being denied the right which was his under Section 495, Mississippi Code of 1930, to be sued in the county of his household and residence.
15 C.J. 800, par. 98; 45 C.J. 1133, par. 45; 67 C.J. page 106, par. 168, page 107, par. 169, page 111, par. 175, page 113, par. 178; Bailey v. Light Power Co., 38 So. 355; Miller v. Highland Ditch Co., 22 A.S.R. 255; Livesay v. Bank, 118 A.S.R. 124; Burgin v. Smith, 141 So. 762; Trolio v. Nichols, 133 So. 207; Nicholson v. G.M. N.R.R., 172 So. 306.
Where two or more parties act each for himself, and independently of each other in a proceeding, the results of which may be injurious to another, they cannot be jointly held liable for the acts of each other.
Livesay v. First National Bank, 118 A.S.R. 120; Miller v. Highland Ditch Co., 22 A.S.R. 254; Trolio v. Nichols, 133 So. 207, 160 Miss. 611; Nicholson v. G.M. N.R.R., 172 So. 308.
We submit that appellant's motion to transfer the cause to the county of his household and residence should have been sustained, and the failure of the trial court to sustain said motion was and is prejudicial and reversible error and a denial to appellant of a substantial right guaranteed to him under the law.
Bailey v. Delta Electric Light Power Co., 38 So. 355; Miller v. Highland Ditch Co., 22 A.S.R. 254; Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811.
We submit that appellant was entitled to a directed verdict at the close of appellee's testimony and certainly to a directed verdict at the close of the entire case.
An owner of premises is liable for an injury received on the premises or an abutting street or highway when, and only when, he has failed to perform some duty owed by him to the party injured, and such failure was the proximate cause of the injury.
An owner of property or premises may be liable for an injury not only where it was caused by the negligent acts of his employees, within the scope of their employment, upon the premises, but also where it was caused by an act, connected with the property, which he permitted another to do, or by a defective or dangerous condition of the premises, which he permitted another to create. On the other hand, the fact that the negligent act which caused the injury was done on a person's land or property will not render him liable where he had no control over the persons committing such act, and the act was not committed on his account.
45 C.J., pages 877, 878 and 879, pars. 309, 310 and 311.
Currie Currie and Earle L. Wingo, all of Hattiesburg, for appellee.
Appellant and his co-defendant, City of Hattiesburg, were both guilty of negligence that contributed to the injury of appellee. The declaration stated a good joint cause of action against both defendants, and the proof overwhelmingly sustained the allegations of the declaration as to the negligence of both the defendants.
The City of Hattiesburg, appellant's co-defendant, was bound under the law to the duty of exercising reasonable care to keep and maintain this much used walk and street in a reasonably safe condition. The evidence offered by appellee showed that this shed and fire wall had been in very bad condition over a period of years, that its condition had attracted the attention of persons generally, five or six witnesses having testified that the parapet or firewall to which this heavy shed was suspended had reached the condition to where its appearance showed that it was likely to fall at any time. The shed was immediately over the walk. The weight of the shed had pulled the firewall or parapet of the building over toward the street — the evidence shows from six to ten inches — and that this condition was observable from the street and the walk and that it had continued for several years. We submit that under this state of facts the City of Hattiesburg, co-defendant of appellant, was charged with knowledge of this condition, or, at least, it was a question for the jury to say whether or not the condition of the shed and firewall had existed for such a length of time as to charge the City with knowledge of its condition. This being true, we submit that a perfect case in law was stated and proven against appellant's co-defendant, and that the court committed error in sustaining the directed verdict for the City of Hattiesburg.
Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521; Whitfield v. Meridian, 66 Miss. 570, 6 So. 244, 14 Am. St. Rep. 596, 4 L.R.A. 834; Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L.R.A. (N.S.) 649; Hardin v. Corinth, 105 Miss. 99, 62 So. 6; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 124; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; Atkinson v. Town of Decatur, 131 Miss. 707, 95 So. 689; Byrnes v. City of Jackson, 105 So. 861, 42 A.L.R. 254; Klepper v. Seymour House Corp., 62 A.L.R. 995; 13 R.C.L., page 154, par. 134, and page 431, par. 353.
Under section 2407, Mississippi Code of 1930, each municipality is constituted a separate road district, and the mayor and board of aldermen are empowered to compel male citizens of the designated age to perform labor upon the streets, avenues and alleys, or to pay a fixed sum of money. So, it is seen that the City of Hattiesburg, appellant's co-defendant, was vested with absolute power and control over the streets, avenues, walks, etc., in the City of Hattiesburg.
Sections 2411, and 2441, Code of 1930.
In support of the contention that the defendant, City of Hattiesburg, was liable to appellee for the injury resulting under the facts testified to by his witnesses, and that in correcting the situation that the city would not be acting in its governmental capacity, but in its corporate or individual capacity, we cite the following cases:
Klepper v. Seymour House Corp., 246 N.Y. 85, 158 N.E. 29; Parker v. Macon, 99 Am. Dec. 486; Bohen v. City of Waseca, 50 Am. Rep. 564; Kiley v. City of Kansas, 33 Am. Rep. 491; 6 McQuillin, Municipal Corporations, page 5668, par. 2775.
The court heard the motion for change of venue by appellant, and heard the evidence on the motion, and found from the evidence that the City of Hattiesburg, appellant's co-defendant, was not fraudulently joined. Among other things, the order expressly states that the court "having heard testimony offered upon the same, finds that the joint defendant of the movant, B.A. Weems, was not fraudulently joined for the purpose of conferring jurisdiction upon this court, but was joined in good faith by the plaintiff, and that this court has jurisdiction to hear and determine said cause."
It is clearly demonstrated that appellant was not entitled to have the cause removed to Lamar County and that appellant's co-defendant was joined in good faith, and that said joinder was not fraudulent.
Trolio v. Nichols, 133 So. 207; Daniel v. Livingstone, 150 So. 662; Pan American Corp. v. Pate, 126 So. 480, 157 Miss. 822; Indianola Cotton Oil Co. v. Crowley, 83 So. 408, 121 Miss. 262; Dean v. Brandon, 104 So. 173.
Where the declaration alleges in good faith facts which state a joint cause of action, motion for a change of venue, after granting a peremptory instruction for resident defendant, was properly overruled, as no fraudulent joinder for purpose of fixing venue was shown.
Cox v. Dempsey, 171 So. 788, 177 Miss. 678.
Appellant devotes much argument under the first two assignments, namely, that the court erred in not changing the venue of the action to Lamar County, to the question of misjoinder. This point was not raised in the court below, and cannot be raised on appeal for the first time. We cite the following statutes and decisions as deciding this issue against appellant.
Sections 514 and 515, Code of 1930; Payne v. Stevens, 125 Miss. 582, 88 So. 165; Campbell v. Farmers Bank, 127 Miss. 668, 90 So. 436; Stauffer v. Garrison, 61 Miss. 67; Walker v. Hall, 66 Miss. 390, 6 So. 318; Jackson v. Dunbar, 68 Miss. 288, 10 So. 38; Avera v. Williams, 81 Miss. 714, 33 So. 501; Belt v. Adams, 125 Miss. 387, 87 So. 666; Aven v. Singleton, 132 Miss. 256, 96 So. 165.
Appellant could not raise the question of misjoinder by motion.
Flournoy v. Smith, 3 How. (4 Miss.), 62; Caperton v. Winston County Fair Assn., 153 So. 801, 169 Miss. 503.
Our court has very clearly announced the law on the question of joint tort-feasor and every case decided by our court is adverse to appellant's contention.
Nelson v. I.C.R.R. Co., 98 Miss. 295, 53 So. 619; Miller v. Phipps, 161 Miss. 564, 137 So. 479; Sawmill Constr. Co. v. Bright, 77 So. 316, 116 Miss. 491; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Bailey v. Delta Electric Light Power Co., 38 So. 354, 86 Miss. 634; Westerfield v. Shell Petroleum Corp., 138 So. 561, 161 Miss. 833; Moore v. Foster, 180 So. 73; Railroad Co. v. Clark, 85 Miss. 697, 38 So. 97.
It was the duty of appellant Weems to so maintain his shed and firewall as to make it reasonably safe. It extended immediately over the sidewalk and was an additional servitude upon the walk and he owed the duty to exercise reasonable care to keep and maintain it in a reasonably safe condition. The defendant, City of Hattiesburg, owed the duty to exercise reasonable care to keep and maintain the sidewalk in a reasonably safe condition. They both owed this duty to appellee. A failure on the part of each to perform this duty constituted a tort and they became joint tort-feasors.
26 R.C.L. 763, par. 13; Nesbit v. City of Greenville, 10 So. 452.
An abutting property owner is liable to anyone injured where he interferes with or obstructs a street.
28 Cyc., page 1434, par. 7, and page 1441; 7 A.L.R. 205, sub-div. II; Mullen v. St. John, 57 N.Y. 567, 15 Am. Rep. 530.
The appellant owns a brick building fronting on Newman Street in the City of Hattiesburg, in front of which was a wooden shed or awning attached to the building and extending over the sidewalk. This awning fell while the appellee was on the sidewalk under it and injured him, for which he sued the appellant and the City of Hattiesburg. When the appellee introduced his evidence in chief and rested, the court below gave the City of Hattiesburg a directed verdict and there was a judgment for the city accordingly. The case then proceeded against the appellant, resulting in a verdict and judgment for the appellee.
The case was tried in Forrest County, and the household and residence of the appellant is in Lamar County. Before pleading to the declaration, the appellant filed a motion to change the venue of the action to Lamar County on the ground that the City of Hattiesburg had been fraudulently joined as a defendant to the declaration for the purpose of depriving the appellant of his right under section 495 of the Code of 1930, to have the case tried in Lamar County. The court heard evidence on this motion and overruled it. This motion was renewed when the court directed a verdict for the city and was again overruled. These two rulings of the court are assigned as error.
In support of his claimed right to a change of venue, the appellant says that the city was neither a necessary nor proper party to the action. This awning was not placed over the sidewalk by the City of Hattiesburg, but was placed there by the person from whom the appellant purchased the building, and the city simply permitted it to remain there. We are not called on to decide whether, under these circumstances, the city is charged with the duty of exercising reasonable care to prevent the awning from falling and injuring persons using the sidewalk. It will be sufficient to say that many courts hold that a municipality is charged with this duty, that this court has not yet definitely ruled thereon, and therefore the appellee cannot be said to have fraudulently joined the city as a party to this action, knowing that no recovery against it could be had thereon. If the city is in fact liable to the appellee for his injury, its liability and that of the appellant rests upon the same ground, i.e. the failure to exercise reasonable care to keep the awning from being in such condition as to make it dangerous to those lawfully using the sidewalk; and the neglect of this duty by both the city and the appellant, according to the appellee's declaration and evidence, "resulting in a single and indivisible injury" to him. Consequently they are joint feasors. Nelson v. I.C.R.R. Company, 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.), 689; 47 C.J. 80; 62 C.J. 1130. Again, we say that we must not be understood as determining what duty, if any, here rested upon the city.
The evidence discloses that the appellant purchased the building some years prior to the fall of this awning. The awning was then attached thereto. How it was attached to the building on the side adjoining it does not appear. It was supported, however, by tie rods extending from its outer edges up to a brick fire wall, about eight inches thick, extending above the building. The rods were passed through this wall and bolted thereto. While there was a conflict in the evidence relative thereto, the jury were well warranted in finding that for quite a long time prior to the fall of the awning this fire wall to which the awning's tie rods were bolted was leaning forward, that is, toward the awning, about six inches, which fact was known to the appellant and his agent in charge of the building. According to the appellant's evidence, his agent had a carpenter to examine the wall and awning some months before the awning fell, and the carpenter found one end of the awning sagging. He pushed it up, placed a 2 x 4 timber between the back of the wall and the nut and bolt holding the tie rod, thereby drawing the sagging end of the awning up to the same level of the other portion thereof. At times, children were seen on top of the awning but not when it fell on the appellee. The cause of the falling of the awning, according to the appellee's evidence, was that this brick fire wall gave way and fell, thereby releasing the awning.
The jury having resolved this conflict in the evidence in favor of the appellee were warranted in then finding that the appellant failed to exercise reasonable care to prevent the awning from falling and injuring persons on the sidewalk. No error therefore was committed by the court below in refusing the appellant's request for a directed verdict.
One of the instructions granted the appellee charged the jury in substance that if children at times played on the awning, to the knowledge of the appellant or his agent in charge of the building, that it was the duty of the appellant to have the awning inspected at reasonable intervals, and that if the playing on the awning by the children weakened its supports, which fact could have been discovered by a reasonable inspection "then under the law it was the duty of the defendant to repair said shed and its supports so as to make it strong enough that it would not fall, and if you further believe from the evidence that the defendant failed or neglected to perform this duty imposed upon him by law then the defendant was guilty of negligence." If children were accustomed to play on this awning, with the knowledge of the appellant, that fact entered into the appellant's duty to exercise reasonable care to prevent the awning from falling on the sidewalk, and in that respect the instruction is correct. It is incorrect in so far as it charges the defendant "to repair said shed and its supports so as to make it strong enough that it would not fall." The duty on the appellant to prevent the shed from falling was not absolute, but only to exercise reasonable care to keep it in a reasonably safe condition. This error, however, could not have misled the jury in the light of other instructions given.
The court also charged the jury for the appellee "that it is wholly immaterial as a matter of law who constructed the building and shed in question, and it is wholly immaterial as a matter of law that the defendant in this lawsuit did not build or construct the same, the only material question being whether the defendant owned the building and shed at the time of the injury of the plaintiff, and if he did the law made it his duty as owner thereof to exercise reasonable care to keep the same in a reasonably safe condition, as set out in the instructions herein granted the plaintiff by the court, and if you believe from the evidence in the case that the defendant then owned the building and shed and negligently failed to discharge such duties and that as a proximate and direct result thereof said building and shed fell upon and injured the plaintiff the defendant is liable." There is no error in this instruction. The appellant's duty in the matter began when he purchased the building. If the awning was then in such condition as to be dangerous to persons using the sidewalk, it became his duty to exercise reasonable care to remedy this defect therein.
Two instructions refused the appellant would have charged the jury in substance that if the fall of the awning was caused by its use — climbing and walking thereon by persons other than the defendant — he would not be liable therefor. On the evidence, these instructions were properly refused. It does not appear that anyone was on the awning at the time it fell, and the fact that persons may have been thereon at other times has been hereinbefore dealt with.
Affirmed.