Indianola Cotton Oil Co. v. Crowley

• Decision Date: 12 January 1920
• Docket Number: 20915
• Citation: 83 So. 409,121 Miss. 262
• Court: Mississippi Supreme Court
• Parties: INDIANOLA COTTON OIL CO. ET AL. v. CROWLEY

83 So. 409

121 Miss. 262

INDIANOLA COTTON OIL CO. ET AL. v. CROWLEY

No. 20915

Supreme Court of Mississippi

January 12, 1920

October 1919

1 VENUE. Defendant may not apply for change of venue after pleading general issue.

Under the rules of pleading and practice a defendant who has filed the plea of general issue accepts the venue, and will not be allowed, especially after a year's time to withdraw the plea and make application for a change of venue which he has waived.

2 SAME.

There may be an exception to this rule, where the trial judge in his discretion should deem it manifestly just to allow such withdrawal and grant a change of venue.

3 VENUE. Joint action may be brought where either defendant resides.

Under Code 1906, section 707, as amended by Laws 1908, chapter 166, and Laws 1919, chapter 149, requiring civil actions to be brought in the court which the defendant or any of them may be found, but providing that a resident sued out of the county of his residence may have the venue changed, a joint action may be commenced in the county in which either of the defendants reside, and service on a defendant residing in another county is valid and binding.

4. TRIAL. Defense of justification do s not entitle defendant to open and close.

Where the defendant files a plea of justification to an action for assault, this does not entitle him to open and close the case, since in the absence of evidence, the jury must necessarily find for the defendant and plaintiff must prove an unjustifiable assault and his damages, and therefore has the affirmative.

5. MASTER AND SERVANT. General manager acting within the scope of his employment in commiting an assault.

Where the general manager of a plant told a bookkeeper to leave the books and accounts with him for inspection and when the bookkeeper hesitated to do so, assaulted him. In such case the general manager was acting within the scope of his employment and about his master's business and the master was liable for his acts, though he desired to inspect his individual account with the master.

HON. H. H. ELMORE, Judge.

APPEAL from the circuit court of Sunflower county, HON. H. H. ELMORE, Judge.

Suit by E. A. Crowley against the Indianola Cotton Oil Company and another. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

J. B. Harris, Moody & Williams, S.D. Neill, Capman & Johnson and J. Holmes Baker, for appellant.

Frank E. Everett and S. F. Davis, for appellee.

HOLDEN, J. STEVENS, J. specially concurring.

IN BANC

OPINION

HOLDEN, J.

The appellee, E. A. Crowley, sued and recovered judgment against the appellants, J. H. Pettey and the Indianola Cotton Oil Company, for damages for an assault made upon appellee by Pettey, who was the general manager and agent of the oil company, from which this appeal was taken.

The record shows that the oil company was a domestic corporation, doing a general oilmill business at Indianola, Sunflower county, and was managed and controlled by the appellant Pettey, whose home and residence was in Leflore county. The suit was instituted in Sunflower county, and service of summons was had there upon both of the appellants. The appellants appeared and filed the general issue and special pleas to the declaration. After the cause had been pending about a year the appellant Pettey moved the court for permission to withdraw his plea of the general issue and for a change of venue to Leflore county where he resided. This motion was overruled by the court. The case then went to trial on the plea of the general issue by the oil company and special pleas of justification by both appellants.

The testimony in the record shows the assault occurred in the following manner. Mr. Crowley, the appellee, was the bookkeeper in charge of the books and accounts of the oil company. Mr. Pettey was the general manager, having full and absolute control over the operation of the oilmill plant, including full control over the bookkeeper, its books and accounts. On the day of the assault Mr. Pettey approached the appellee Crowley near the noon hour in the office of the oil company, and stated to him that he wanted to see the books of the company, and for him (Crowley) to go to dinner and leave the safe open and books out, so that he could inspect the books and the accounts. When Crowley hesitated in complying with this demand Pettey, as testified by Crowley, cursed and abused him, and assaulted him with a deadly weapon, striking him several times and leaving him in a bruised and dazed condition. It appears from the testimony of both Pettey and Crowley that Pettey desired to inspect the books and accounts of the oil company, and it was for that purpose that he ordered Crowley to leave the books out while he went to dinner. It is also developed in the testimony that Pettey especially desired to inspect his personal account with the oil company, kept in these books by Crowley. Pettey's defense at the trial was an effort to show justification for assaulting Crowley, but the jury, on the conflict of testimony, decided this issue of fact against him.

Reversal of the case is urged upon several grounds, which we shall now briefly consider. It is contended that the court erred in denying Pettey a change of venue to Leflore county, where he lived. We see no merit in this contention for two reasons: In the first place, under the rules of pleading and practice a defendant who has filed the plea of general issue accepts the venue, and will not be allowed, especially after a year's time, as in this case, to withdraw the plea and make application for a change of venue, which he has waived. There may be an exception to this general rule, where the trial judge in his discretion should deem it manifestly just to allow such withdrawal and grant a change of venue. In the second place, section 707, Code of 1906, amended by chapter 166, Laws of 1908, and chapter 149, Laws of 1918, is so plain in its meaning and purpose that it needs no explanation for its proper application. In joint actions the suit may be commenced in the county in which any one of the defendants is domiciled or resides. The oil company, one of the joint defendants here, is a domestic corporation, and domiciled in Sunflower county, where this suit was instituted. Pettey, the other joint defendant, was served with summons to appear and defend the joint action where the corporation, one of the defendants, was domiciled. Certainly the service on Pettey, who was a resident of another county, was valid and binding, and required him to answer the suit in ...