Black v. Stone County Lumber Co., 38690

• Decision Date: 16 March 1953
• Docket Number: No. 38690,38690
• Citation: 216 Miss. 844,63 So.2d 405
• Parties: BLACK v. STONE COUNTY LUMBER CO.
• Court: Mississippi Supreme Court

Page 405

63 So.2d 405

216 Miss. 844

BLACK v. STONE COUNTY LUMBER CO.

No. 38690.

Supreme Court of Mississippi.

March 16, 1953.

J. Boyce Holleman, Wiggins, for appellant.

Jo Drake Arrington, Gulfport, for appellee.

HALL, Justice.

Appellant brought suit for damages against appellee for the destruction by fire of an International tractor which had been rented by him to appellee for use by it in moving lumber on its mill yard at Bond, Mississippi. Suit was filed on December 23, 1950, and process issued directed to the Sheriff of Lauderdale County for service. A copy was served on appellee's secretary on December 29, 1950. The copy so served was returnable to the fourth Monday in January 1950 instead of 1951. Appellee did not appear and plead at the regular term of court convening on the fourth Monday in January 1951 and appellant took a judgment by default and upon a writ of inquiry the jury fixed his damages at $1,500 for which amount a judgment was entered. Later in the term appellee appeared and filed a motion to set aside the judgment. That motion was sustained and appellant was granted leave to file an amended declaration and appellee was granted leave to answer the same. At a subsequent term the case came on for trial and at the conclusion of all the evidence the trial court granted a peremptory instruction in favor of appellee from which action this appeal is prosecuted.

Appellant's first contention is that the trial court erred in setting aside the judgment by default and he asks that the same be reinstated. In Turner v. Williams, 162 Miss. 258, 139 So. 606, we held that a summons to appear on a past date is void and that the court acquires no jurisdiction of the person of the defendant undr such a summons. It is our conclusion that appellant's contention is without merit.

It is next contended that the trial court erred in granting the peremptory instruction requested by defendant because the evidence presented a question for the jury as to whether the defendant was guilty of negligence proximately contributing to the fire which destroyed the tractor. The declaration charges in general terms that the fire which destroyed the tractor resulted from the negligence of appellee in permitting fire hazards to exist around the mill and in failing to provide the proper equipment with which to fight a fire. In this case is was shown without dispute that the tractor was rented to appellee for use on the mill yard for a daily rental of $2.50. The relation of bailor and bailee existed between the parties. In Yazoo & M. V. R. Co. v. Hughes, 94 Miss. 242, 47 So. 662, 22 L.R.A.,N.S., 975, we held that where this relation existed and the property was destroyed by fire while in custody of the bailee the burden is upon the bailor-plaintiff to show that the fire resulted from the negligence of the bailee-defendant. The fire in this instance occurred in the middle of the night and totally consumed appellee's planer mill. The tractor was stored for the night under the shed of this mill and was destroyed in the fire. There was a disputed question of fact as to whether appellee required appellant to leave the tractor under the mill shed. Assuming that appellee made this requirement, the burden was still upon appellant to show facts from which negligence could reasonably be inferred, not as a mere possibility but as a reasonable probability. Appellant's proof was to the effect that appellee permitted lumber shavings to accumulate about the mill, that it maintained a burning pit about 100 feet from the mill, that in times of high wind sparks from the burning pit would ignite the shavings, and that it had been necessary on several occasions to extinguish fires which had originated in that manner. Appellant, however, offered no proof as to the origin of the fire nor that there was a high wind blowing on the night in question. We think that the appellant's proof was not sufficient to establish a jury issue on the question of negligence and that consequently there was no error in granting appellee a peremptory instruction.

After the trial of the case and before the adjournment of court appellant filed a motion for a new trial on the ground of newly discovered evidence. This motion was sworn to by both the appellant and his attorney and showed that they had both been diligent in their...