Gulf Refining Co. v. Moody

• Decision Date: 01 April 1935
• Docket Number: 31599
• Citation: 160 So. 559,172 Miss. 377
• Court: Mississippi Supreme Court
• Parties: GULF REFINING CO. et al. v. MOODY

160 So. 559

172 Miss. 377

GULF REFINING CO. et al. v. MOODY

No. 31599

Supreme Court of Mississippi

April 1, 1935

Division A

APPEAL from the circuit court of Hancock county HON. D. A. WHITE Judge.

Action by Madeline Moody against the Gulf Refining Company and others. From a judgment in favor of plaintiff and denial of a motion for a new trial, named defendant appeals. Affirmed.

Affirmed.

E. J. Gex, of Bay St. Louis, and Carl Marshall, of Gulfport, for appellant.

For the error embodied in the learned trial court's denial of the appellant's petition to remove the cause to the federal district court, and its refusal to so remove it on said petition, the judgment appealed from should be reversed, and the cause remanded for the effectuation of said removal. The appellant did not waive the right of removal by going to trial in the lower court after its petition for the removal had been denied.

Hercules Powder Co. v. Sistrunk, 145 Miss. 299, 110 So. 674; Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So 862; Section 71, Title 28, U.S.C. A.; Lee v. Chesapeake & Ohio Railroad Co., 260 U.S. 653, 43 S.Ct. 230, 67 L.Ed. 443; 4 Hughes Federal Practice, Removal of Causes, secs. 2332 and 2338; Gulf & Ship Island Railroad Co. v. Gulf Refining Co., 260 F. 262.

It is submitted that, even in the simplified system of pleading in actions at law permitted by section 521 of [172 Miss. 379] the Mississippi Code of 1930, no cause of action is alleged in the appellee's declaration against the nominal defendant Willard Stewart.

Even if the appellee did enter the premises generally under a license as the companion of her father, who was engaged in business with the appellant's agent, the license did not extend to parts of the premises not designed for entry and occupancy by persons being upon the premises on business with the appellant. In that event, the appellant could not be held liable for an injury received by the appellee on that part of the premises, as the result only of simple negligence, or a failure to adopt reasonable care, on the part of the appellant.

Y. & M. V. R. R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; I. C. R. R. Co. v. Lucas, 89 Miss. 411, 42 So. 607; 45 C. J., Negligence, section 198.

There was a fatal departure in the appellee's proof from the theory on which the action was pitched in the declaration.

Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; Ozen v. Sperier et al., 150 Miss. 458, 117 So. 117.

Gex & Gex, of Bay St. Louis, for appellee.

It is now the law in Mississippi that both the agent and the principal are liable to a third person, injured by the tortious act of the agent, acting in behalf of his principal.

Mullican v. Light & R. Co., 121 Miss. 806; Mississippi Power & Light Co. v. Smith, 153 So. 376; Archer v. I. C. R. R. Co., 113 Miss. 158; Galvin v. Brown & McCabe et al., 101 P. 671; Kenney v. Lane, 36 S.W. 1063; Haynes Adm., v. C. N. O. & T. P. R. R. Co., 140 S.W. 177; Murrary et al. v. Cowherd, 147 S.W. 6; Central Georgia Ry. Co. v. Brown, 38 S.E. 989; So. Ry. Co. v. Miller, 217 U.S. 209, 54 L.Ed. 732.

There is nothing better settled in law than the principle, that a petition for removal must be considered upon the record as it existed at the time of presentation of the petition.

American Car & Foundry Co. v. Kettlebake, 226 U.S. 311, 59 L.Ed. 594; Southern Ry. Co. v. Miller, 217 U.S. 209, 54 L.Ed. 732.

When the petition was presented, the record showed a joint cause of action alleged against all of the defendants, and it was the duty of the state court to deny the petition, where on the face of the record no diversity of citizenship existed, and where a joint cause of action was alleged, it being the duty of the state court to determine whether or not a cause of action was alleged against the defendants.

I. C. R. R., Co. v. Shegog, 215 U.S. 308, 54 L.Ed. 208; Alabama G. S. R. Co. v. Thompson, 200 U.S. 206, 50 L.Ed. 441; C. R. I. P. R. R. Co. v. Whitaker, 239 U.S. 421, 60 L.Ed. 360.

So long as the cause of action actually exists, it makes no difference whatever, what the purpose is in joining the defendant whose presence is necessary in order to keep the case in the state court.

Chicago, R. I. & P. R. Co. v. Dowell, 229 U.S. 109, 57 L.Ed. 1090.

One who maintains a dangerous structure or appliance whether on his own land or lawfully on a public highway, is under the duty to use reasonable care to protect from injury not only those of mature age, who are bound to use their faculties to protect themselves, but also children of tender years, who may without their fault, become exposed to the danger.

Snair v. Friedman, 169 F. 1; St. L. & S. R. R. R. Co. v. Underwood, 194 F. 363.

Children, wherever they go, must be expected to act on childish instincts and impulses, and others who are chargeable with a duty of care and caution towards them must calculate upon this and take precautions accordingly.

Union Pacific Ry. Co. v. McDonald, 152 U.S. 262; Spengler v. Williams, 67 Miss. 1, 6 So. 613; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Mackey v. City of Vicksburg, 64 Miss. 777, 2 So. 178; Temple v. McComb City Electric Light & Power Co., 89 Miss. 1, 42 So. 874.

While the proof did show that the raised platform on which appellee was standing at the time of the injury was the property of the filling station, all of the proof was to the effect that it was so closely connected to as to practically form a part of the sidewalk.

Section 568, Code of 1930; Greer v. Bush, 57 Miss. 575; Kimbrough v. Ragsdale, 69 Miss. 674; Illinois R. Co. v. Cathey, 70 Miss. 332; Illinois R. Co. v. Price, 72 Miss. 862; True-Hixon Lbr. Co. v. McDonough, 154 Miss. 720.

There is nothing whatever from which the court might conclude that the jury was swayed by passion or prejudice in reaching the amount of the verdict; and only in such cases would this court have the right to reduce the amount thereof.

M. J. & G. N. R. R. Co. v. Hurst, 36 Miss. 600; Miss. Central R. Co. v. Lott, 118 Miss. 816; Y. & M. V. R. R. Co. v. Dees, 121 Miss. 438; Laurel Light & Ry. Co. v. Jones, 137 Miss. 143; Bateman v. Teche Lines, 162 Miss. 417; Meade v. Oakland High School District of Alameda County, 291 P. 874.

OPINION

McGowen, J.

In the circuit court of Hancock county, Madeline Moody, a minor, appearing therein by her next friend and father, brought an action at law against the Gulf Refining Company, a corporation, organized under the laws of the state of Texas, but legally qualified to do business and having a designated agent in the state of Mississippi, F. N. Franovich and Willard Stewart, defendants, resident citizens of Louisiana. The plaintiff, the appellee, is also a resident citizen of Bogalusa, Louisiana. The appellee alleges negligence on the part of the appellant as master, Franovich as its superior officer, and of Stewart as its servant, in that Franovich was engaged in his duty of inspecting a filling station owned by the appellant company, and that, while so engaged, he directed the cleaning of its lamps, including a large lamp globe or shade belonging to the appellant, which had been placed by it upon a pole some eight or ten feet high in front of the filling station by one Stewart, whom he had engaged to undertake the cleaning of same; that in order to clean the lamp globe it was necessary to remove it from the pole, clean it, and replace it thereon; that the said Stewart did so and replaced it on the pole to which it had been attached; but that either because of the fact that the bolts or screws used in holding said lamp globe on had become worn, or of the failure of Stewart to screw such lamp globe on tightly and securely, it suddenly fell on the head of the plaintiff while she was standing underneath or near the lamp globe, injuring her severely.

Process was served upon Willard Stewart in Hancock county, Mississippi. He was a minor, and process was had upon the designated agent of the Gulf Refining Company. Franovich was never served with process.

Upon the return day, before pleading, the Gulf Refining Company appeared and filed its petition to remove the cause to the United States District Court for the Southern Division of the Southern District of Mississippi, alleging a diversity of citizenship, and that the amount sued for was in excess of three thousand dollars. It further averred that no joint cause of action was alleged against the appellant and its servants, Franovich and Stewart, and that the controversy was separable and severable. The petition for removal did not allege that there was a fraudulent joinder of the individuals above named. With the petition was tendered suitable and proper bond as found by the court; the motion to remove the cause to the federal court was overruled. Thereupon the appellant company filed a plea of the general issue, and, upon the hearing of the cause on its merits, the jury returned a verdict against it, but not against Stewart.

At the conclusion of the evidence, the appellee entered a nonsuit as to Franovich, who had not appeared or been served with process. The motion for a new trial was overruled, and the appellant company appeals here.

The facts briefly stated are: Madeline Moody, a minor, eleven years of age, accompanied her father to a filling station owned, operated, and controlled by the appellant company situated on the corner of Alabama and Memphis streets in Bogalusa, Louisiana, and while standing outside of the filling station on an elevation four inches higher than the sidewalk and abutting it, the globe of an electric light, suspended about ten feet above her, suddenly fell upon her head, knocking her down and rendering her unconscious. She was immediately taken to a hospital. This occurred about seven o'clock that...