Howard v. Ware

• Decision Date: 22 September 1941
• Docket Number: 34457.
• Citation: Howard v. Ware, 192 Miss. 36, 3 So.2d 830 (Miss. 1941)
• Court: Mississippi Supreme Court
• Parties: HOWARD v. WARE.

3 So.2d 830

192 Miss. 36

HOWARD v. WARE.

No. 34457.

Supreme Court of Mississippi

September 22, 1941

Appeal from Circuit Court, Washington County; S.F Davis, Judge.

Johnson & Allen, of Indianola, Dugas Shands, of Cleveland, Ernest Kellner, of Greenville, Palmer Lipscomb, of Cleveland, and Brewer & Hewitt, of Jackson, for appellant.

Wynn, Hafter & Lake, of Greenville, J.O Eastland, of Ruleville, and Courtney C. Pace, of Cleveland for appellee.

SMITH Chief Justice.

Highway 61 runs north and south through the town of Shaw in Bolivar County, at which place it is crossed by another highway running east and west, known as the Shaw-Indianola Road. In March, 1940, a motor truck going north on highway 61, in which the appellee's intestate, Linnie T. Ware, was a passenger, collided at this intersection with an automobile going west, owned and driven by the appellant, and Ware was killed thereby. He was employed by C.F. Cole Flying Service Inc., the owner of the truck, as a bookkeeper, and C.P. Cole, who was driving the truck, is its president. The corporation is domiciled at Leland, in Washington County, in which county this action was brought against the appellant and the Cole corporation. A judgment was rendered against both defendants, and Howard alone appeals.

The appellant is a householder, and resides in Sunflower County. When the case came on for trial she applied for, but was denied, a change of venue to Sunflower County under Section 495, Code of 1930, alleging that the plaintiff had no cause of action against the Cole corporation, and that it was joined as a defendant for the sole purpose of enabling the plaintiff to have the case tried in Washington County. If this is true the venue should have been changed to Sunflower County.

The declaration alleges that Ware, at Cole's direction, was accompanying him on a mission for the corporation within the scope of his employment, and we will assume that if this is true the corporation would be liable for Cole's alleged negligence in driving the truck at the time Ware was killed. The burden of negativing this allegation on the hearing of the motion for a change of venue was on the movant, and we will assume, as the fact probably is, that she did not meet this burden.

At the trial on the merits the plaintiff closed her case without introducing any evidence tending to prove the allegation of her declaration hereinbefore stated. Whereupon the appellant again requested, but was denied, a change of venue.

The allegations of the declaration are not here controlling Trolio v. Nichols, 160 Miss. 611, 612, 132 So. 750, 133 So. 207, and when the appellee rested her case without attempting to prove liability on the part of the Cole corporation the appellant's request for a change of venue should have been granted. This necessarily follows from Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281; Trolio v. Nichols, 160 Miss. 611, 612, 132 So. 750, 133 So. 207; Weems v. Lee, 185 Miss. 98, 187 So. 531. That the court permitted a judgment to be rendered against the Cole corporation does not deprive the appellant of her right to the change of venue, nor does the fact that she filed a plea to the merits after her motion for a change of venue was overruled. Had she...