Long v. Patterson

• Citation: 198 Miss. 554,22 So.2d 490
• Decision Date: 11 June 1945
• Docket Number: 35887.
• Court: United States State Supreme Court of Mississippi
• Parties: LONG et al. v. PATTERSON et al.

22 So.2d 490

198 Miss. 554

LONG et al. v. PATTERSON et al.

No. 35887.

Supreme Court of Mississippi

June 11, 1945

Mitchell & Clayton and John R. Anderson, all of Tupelo, and E. K. Windham and Donald Franks, both of Booneville, for appellants.

Cunningham & Cunningham, of Booneville, for appellees.

GRIFFITH Justice.

About nine o'clock on the evening of May 25, 1944 appellees' decedent, John Patterson, was driving a farm tractor northward on paved highway No. 45 in Prentiss county. The tractor carried no lights. Riding on the rear fender of the tractor was a boy named Cecil Jones, fourteen years of age. The declaration alleged that Jones 'agreed and promised the said John Patterson * * * that he would exercise all diligence and care to give Patterson timely notice of all approaching traffic, and plaintiffs' said decedent relied upon the promise and undertaking of said defendant (Cecil Jones) in the course of travel by tractor on said highway.' The declaration avers that a cattle truck driven by the defendant Martin approached from the south at a reckless and dangerous rate of speed, and that although Martin saw the tractor in the road ahead of him, he disregarded it nevertheless and ran into and upon the tractor with the result that appellees' decedent, the driver of the tractor, was killed; that Jones on the tractor who had agreed to give warning failed to do so until it was too late to turn the tractor off the road, which could have been done avoiding injury, had Jones given warning of the approach of the cattle truck in time.

It is admitted that Martin was the servant of the other defendants Long and Spicer, and that at the time he was engaged in the business of his employers and within the scope of his employment, and it is admitted that the defendants, Martin and Long and Spicer, were and all the while have been residents of Lee County, and that the boy, Cecil Jones, is a resident of Prentiss County. The action was brought in Prentiss County by joining the minor resident as a defendant. Before taking any other steps the nonresident defendants moved the court to order a change of venue to Lee County on the ground that there was no cause of action against the minor and the he was joined only for the purpose of venue in his county. At this time no plea had been filed by the minor raising the defense of minority, and there was no mention in the declaration that Jones was a minor. When the minor's plea came in setting up the defense of minority, the non-resident defendants duly renewed their motion for a change of venue, which was overruled. On the trial a verdict and judgment was rendered against the non-resident defendants, but the verdict was in favor of the minor defendant.

The first question which must be determined is whether the non-resident defendants were entitled to the peremptory charge requested by them. If so, the question of venue would disappear. Under the established rule that all evidence, and all the reasonable inferences that may be drawn therefrom, are to be taken as true in favor of the party against whom the peremptory is asked, we are unable to say that there is not enough here to go to the jury. And thus we are brought to the question of the change of venue, and this introduces two preliminary inquiries:----

(1) Is there a duty imposed by law upon any person to warn another of an approaching or impending danger to the latter, when the person sought to be charged had and has nothing to do with putting into operation, or with the continuance in operation of, the dangerous agency which approaches? Whatever we might think of this as a moral proposition, it is a question to which the settled law gives a negative answer. As stated in the Restatement, Vol. 2 Torts, Sec. 314, 'the actor's realization that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.' And an illustration is given as follows: 'A sees B, a blind man, about to step into the street in front of an approaching automobile. A could prevent B from doing so by a word or touch without delaying his own progress. A does not do so and B is run over and hurt. A is under no duty to prevent B from stepping into the street and is not liable to B.' But the rule is otherwise where the actor undertakes to render such service, although gratuitously, and the other person reasonably relies on the performance of the undertaking. 2 Rest.Torts, Sec. 325. There the liability arises out of the consent of the actor, express or implied, to be bound to the duty, but only by such consent.

(2) May an infant be bound by his consent given in such case? Here, too, the settled law answers in the negative. Many years ago in Ferguson v. Bobo, 54 Miss. 121, it was sufficiently pointed out that an infant cannot be held in tort for faults of omission when the duty to act otherwise must find its basis in an agreement by the infant. The modern authorities, in a sufficient number, are gathered in the opinion and annotations, Brown v. Wood, 293 Mich. 148, 291 N.W. 255, 127 A.L.R. 1436, and there it is shown that the test of liability against an infant for an alleged tort of...