Mississippi Power & Light Co. v. Pitts

• Decision Date: 07 March 1938
• Docket Number: 33056
• Citation: 181 Miss. 344,179 So. 363
• Parties: MISSISSIPPI POWER & LIGHT CO. v. PITTS
• Court: Mississippi Supreme Court

179 So. 363

181 Miss. 344

MISSISSIPPI POWER & LIGHT CO. v. PITTS

No. 33056

Supreme Court of Mississippi

March 7, 1938

Division B

1. REMOVAL OF CAUSES.

An order of federal court remanding cause to state court is not reviewable by state court.

2. REMOVAL OF CAUSES.

Whether the federal court was in error or proceeded upon an erroneous view of law in ordering cause remanded to state court is matter which state court cannot consider.

3. REMOVAL OF CAUSES.

When case is remanded by federal to state court, the state court proceeds with the case according to its own views of the law and the facts, without regard to what views the federal court had on remand, and without regard to what views of the law were urged by any of the parties on the motion to remand.

4. ELECTION OF REMEDIES.

In order that a party shall be bound by an election, he must actually have two inconsistent remedies.

5. ELECTION OF REMEDIES.

Where plaintiff had only remedy of action for breach of contract his original mistaken conception that he had remedy by action in tort and his mistaken pursuit of an action in tort did not bar him from maintaining action in contract.

6 ESTOPPEL.

The fact that plaintiff on motion to remand cause to state court contended that action was one solely in tort and induced federal court to take that view did not estop plaintiff thereafter from urging contract feature in state court.

7 ESTOPPEL.

The doctrine of estoppel has reference to factual matters and not to contentions upon the law as applied to a given state of facts.

8 ESTOPPEL.

Where both parties are equally in possession of all facts pertaining to matter relied on as an estoppel, and the position taken in respect thereto involves solely a question of law, there can be no estoppel.

9. APPEAL AND ERROR.

Arguments in the alternative upon a given state of facts are permissible.

10. TRIAL.

The court decides a case according to any of the alternatives urged that the court thinks tenable, or according to view of law not argued at all, or even on points which counsel for both sides contend has nothing to do with the case.

11. APPEAL AND ERROR.

Where trial court determined that plaintiff had no case either in tort or in contract, and Supreme Court reversed and remanded as to the contract feature, upon the new trial plaintiff was entitled to adjust his position to that allowed by the Supreme Court, regardless of his previous position.

12. JUDGMENT.

The pleadings and the facts developed within the pleadings and not theories of parties control courts in determining rights of parties.

13. PLEADING.

A plaintiff has a right to reduce his demand at any time.

14. PLEADING.

The entry of an order allowing plaintiff to reduce his demand is purely formal, since it involves matter solely for plaintiff to determine.

15. REMOVAL OF CAUSES.

Where plaintiff filed motion to amend declaration by reducing amount of demand to $3,000 and served copy of proposed amendment on defendant before defendant presented petition to remove' cause to federal court, the declaration was required to be considered as having been amended, so far as concerned the amount of the demand, as of the time when the motion to amend was filed, so that the cause was not removable at the time the petition for removal was presented.

16. APPEAL AND ERROR.

The opinion of the Supreme Court on former appeal that declaration disclosed a cause of action for breach of contract was the "law of the case."

17. DAMAGES.

In action for loss of profits resulting from breach of contract, the experiences of previous years, when fairly well shown, may be considered as basis upon which to base judgment for loss of profits, where business was an established one in a staple line.

18. DAMAGES.

A party who has broken his contract cannot escape liability because of the difficulty in finding a perfect measure of damages, it being enough that the evidence furnishes sufficient data for an approximate estimate of the amount of damages.

19. DAMAGES.

Evidence would sustain judgment of $2,500 damages to ice dealer for loss of profits In ice business resulting from breach of contract to furnish ice to dealer.

20. DAMAGES.

In ice dealer's action for breach of contract to furnish ice to ice dealer resulting in loss of profits, dealer could not recover amount spent on equipment and other preparations for the year involved, since he would have had the same expense had the contract not been breached.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Sunflower county, HON. S. F. DAVIS, Judge.

Action by T. M. Pitts against the Mississippi Power & Light Company for breach of contract. From an adverse judgment, defendant appeals. Judgment affirmed on condition of remittitur.

Affirmed, with remittitur.

A. M. Nelson and Green, Green & Jackson, all of Jackson, and Moody & Johnson, of Indianola, for appellant.

Removal to district court was wrongfully denied.

Pitts v. Miss. Power & Light Co., 177 Miss. 288, 170 So. 817; 28 U.S.C. A., sec. 71, notes 401, et seq., especially 411, 565; Harrison v. Harrison, 5 F.2d 1001; Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; 28 U.S.C. A., Sec. 71, note 566.

Under second removal petition, jurisdiction vested in district court.

Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 380; 4 Hughes Federal Procedure, 262; Powers v. Chesapeake & O. R. Co., 169 U.S. 100, 42 L.Ed. 676; Hercules Powder Co. v. Sistrunk, 145 Miss. 299, 110 So. 674; Bankers Securities Corp. v. Insurance Eq. Corp., 85 F.2d 859; Travelers' Protective Assn. v. Smith, 71 F.2d 511; Ayres v. Watson, 113 U.S. 598, 28 L.Ed. 1095; Powers v. C. & O. R. R., 169 U.S. 99, 42 L.Ed. 675; Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So. 862; Yazoo & M. V. R. Co. v. Adams, 77 Miss. 194, 28 So. 956, 180 U.S. 1.

When plaintiff's cause of action in contract was remanded solely as to the non-resident defendant, the Power Company, a non-resident was entitled to remove.

Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 380; Yulee v. Voss, 25 L.Ed. 355, 99 U.S. 546; 85 A.L.R. 803, note; Gurley v. Southern Power Co., 173 N.C. 447, 92 S.E. 262; Powers v. C. & O. R., 169 U.S. 99, 42 L.Ed. 675; Lathrop v. Interior Const., etc., Co., 215 U.S. 246, 54 L.Ed. 177; American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 59 L.Ed. 594; Johnson v. Computing Scale Co., 139 F. 344; Riggs v. Clark, 71 F. 560; Twin Hills Gasoline Co. v. Bradford Oil Corp., 264 F. 446.

Verdict should have been directed for appellant.

Restatement, Law of Contracts, sec. 33; Pitts v. Miss. P. & L. Co., 177 Miss. 288, 170, So. 819; Section 3347, Code of 1930; Vicksburg Waterworks Co. v. Petroleum Co., 86 Miss. 84, 38 So. 302; Lusk v. Universal Credit Co., 164 Miss. 693, 145 So. 623; Wachenfeld v. Favre, 152 Miss. 1, 119 So. 911.

The verdict is excessive.

It was error to strike out defendant's notice under general issue.

Warriner v. Fant, 114 Miss. 174, 74 So. 822; Quitman County v. Miller, 150 Miss. 841, 117 So. 262; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L.R.A. (N.S.) 785; Rea v. O'Bannon, 171 Miss. 824, 158 So. 916.

The petition to remove was not filed too late. The cause on reversal and remand, of course, stands for trial de novo, but, as we understand, there is no necessity for the defendant to file additional or new pleadings, but the original pleadings stand as they were on the first trial, unless, of course, the plaintiff makes a new cause of action or a different cause of action as was attempted to be done here by the notice of the intention to amend. When we had notice of this intention to amend, until such amendment was actually effected by an order of court, the original declaration and pleadings stood with a demand solely and only for breach of contract against the Mississippi Power & Light Company, claiming damages for ten thousand dollars,

Even after the amendment has been allowed to the declaration the original pleas to the original declaration are not thereby suspended.

Parisot v. Helm, 52 Miss. 617.

In filing the second petition for removal (the first petition, bond, etc., are now made a part of the record in the Supreme Court in this case), the defendant seeking to remove did so as promptly as was possible under the facts of the case and before there was any change in the pleadings to reduce the jurisdictional amount, and by specific terms of this petition there was a renewal of the original petition to remove. As soon as we found the record in the circuit court was one that presented a removable controversy we presented our petition and bond, and after they were presented the court attempted to make the cause not removable by allowing amendments to the pleadings. Thereby we followed the rule stated in Powers v. Chesapeake & O. R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673, and as announced by our own court in Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 380.

Waite v. Phoenix Ins. Co., 62 F. 769.

The question of fact is one to be determined by the Federal District Court on a motion to remand and not by the state court.

Hercules Powder Co. v. Sistrunk, 145 Miss. 299, 110 So. 764.

Under the rule in this state a mere offer to amend or a motion to amend without an order entered on the minutes permitting such amendment is wholly without effect.

Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153.

Cooper & Thomas, and B. B. Allen, all Indianola, for appellee.

The order of the Supreme Court in the case of Pitts v. Miss Power & Light Co. and the Leland Ice & Cold Storage, 170 So. 817, was to dismiss the case as to the Leland Ice & Cold Storage and to remand the case for a new trial as to the Miss. Power & Light Company. There was, therefore, an involuntary...