Morrimac Veneer Co. v. McCalip

• Decision Date: 26 June 1922
• Docket Number: 22381
• Citation: 92 So. 817,129 Miss. 671
• Court: Mississippi Supreme Court
• Parties: MORRIMAC VENEER CO. v. MCCALIP

92 So. 817

129 Miss. 671

MORRIMAC VENEER CO. v. MCCALIP

No. 22381

Supreme Court of Mississippi

June 26, 1922

1. CONSTITUTIONAL LAW. Venue. State may provide different rules between citizens and corporations as to change of venue where not affecting any material liability without violating the federal Constitution.

Chapter 149, Laws 1918 (Hemingway's Supp. 1921, 486), providing for a change of venue to a resident citizen who is sued out of the county of his household and residence, and denying such a change to a corporation, does not violate the Fourteenth Amendment to the Constitution of the United States, as it does not affect any vital right, and is a mere matter of practice for the convenience of natural persons who are householders and residents of a county. The state may provide different rules as to venue, between citizens and corporations where it does not affect any material defense or liability.

2. APPEAL AND ERROR. Instruction that measure of damages is difference between contract price and market price of logs cut and delivered and amount plaintiff would have made for cutting timber left standing held not ground for reversal.

It is not reversible error to give an instruction to a plaintiff in a suit for damages for breach of contract that the jury may find for the plaintiff, if the jury believe from the evidence the defendant breached its contract, the difference in the contract price and the market price for logs cut and delivered on the railroad, and also the amount plaintiff would have made for cutting timber left standing as a result of such breach, where the jury did not find anything as damages for the uncut timber even though the evidence may not show with sufficient certainty how much had been delivered and paid for, so as to make the amount due to be cut under a contract appear with reasonable certainty.

HON. A E. WEATHERSBY, Judge.

APPEAL from circuit court of Lawrence county, HON. A. E. WEATHERSBY Judge.

Suit by Floyd McCalip against the Morrimac Veneer Company. Judgment in favor of the plaintiff, and the defendant appeals. Affirmed.

Judgment affirmed.

R. H. &amp J. H. Thompson and Fulton Thompson, for appellant.

We do not contend that the suit at bar was wrongfully brought in the circuit court of Lawrence county. The statute of 1918, chapter 149, authorized its institution in that court. That court had jurisdiction of the subject-matter of the suit and of the parties to it. The venue of the suit was proper under the statute, Laws of Mississippi 1918, ch. 149, p. 154. What we contend is that the very same statute which authorized the suit to be instituted in the circuit court of Lawrence county gave the defendant the right, upon the showing made, to a change of venue, not to dispute jurisdiction or venue but the right to a change of venue.

The collateral observation in the opinion of this court, delivered by COOK, J., in Plummer-Lewis Co. v. Francher, 111 Miss. 656, must have been induced by the conception that Code 1906, section 707, as originally enacted, had no relation to suits against domestic corporations. However this may have been, the section as amended, Laws 1918, chapter 149, p. 154, has express relation to such suits. It relates as surely to suits against domestic corporations as to suits against individual citizens, residents and citizens of this state. An analysis of the statute of 1918 under consideration, shows that civil actions in the circuit courts of this state shall be commenced. (a) in the county in which the defendants or any of them may be found; (b) and, if the defendant be a domestic corporation: (1st) in the county where the corporation is domiciled, (2d) or in the county where the place of business of such corporation may be, or (3d) in the county where the cause of action may occur (whatever this means) or accrue.

The exceptions mentioned in the statute have no application to the suit at bar. Under this statute a suit against an individual citizen and resident of a county, say Hinds county, brought in another county, say Lawrence county, is well brought if the defendant is found and is served with process in the county in which the suit was instituted. If in such case the defendant fails to appear and defend, a judgment by default can be properly rendered against him and he will be bound thereby. The court would have jurisdiction of the subject-matter and of both parties to the suit, and the venue would be proper.

If in such case the defendant appeared and moved for a change of venue, making the proper showing, the same could not rightfully be denied him because the last sentence of the first section of the statute gives him a right to have the venue changed to the county of his residence. How can there be any difference between the supposed case and the case at bar?

Assuming that the declaration shows that plaintiff's cause of action accrued in Lawrence county, he had a right to sue defendant in the circuit court of that county and the service of the summons in Hinds county by the sheriff of Hinds county gave the circuit court of Lawrence county jurisdiction of defendant's person, still the last clause of the statute giving plaintiff the right to sue in Lawrence county, gives defendant a right to change the venue to Hinds county. Remember a corporation is a citizen and a resident under the Fourteenth Amendment to the Constitution of the United States and is entitled to the equal protection of the laws.

If, as recited by Judge COOK, a corporation had no right to a change of venue under the statutes of this state in force in 1916, they surely have such right under the statute approved February 14, 1918, before the beginning of this suit. The question under discussion was presented to the circuit judge in vacation, each party writing letters to him presenting their views and more or less arguing it. The plaintiff's attorneys cited and relied upon the case of Tennessee, etc., Co. v. Dunn (Ala.), 76 So. 360, as an authority denying the change of venue in the case at bar. The Alabama statute referred to in the case cited--it is hereinafter quoted--as shown by the opinion of the court simply and only provided that "a foreign or domestic corporation may be sued in any county in which it does business by agents" with an exception of no consequence to the suit before the court. It was not, as is the statute of this state, coupled with or affected by a provision giving the right to a change of venue, and therefore, the Alabama case is wholly inapplicable to the suit at bar. And besides, the question of a change of venue was not presented to the Alabama court; a change of venue was not asked in the case. The defendants therein pleaded in abatement to the jurisdiction of the court. The right of a defendant to a change of venue was not and could not have been raised by such a plea.

The plaintiff in the presentation by his attorneys of the question now before this court to the circuit judge also cited and relied upon the case of Hatcher v. Southern Ry. Co. (Ala.), 68 So. 55. That case has no more application to the one at bar than the Tennessee, etc., Co., case, 76 So. 360. The plaintiff also cited to the circuit judge another Alabama decision, American Coal Corporation v. Roux, 68 So. 970. The defendant pleaded in abatement in that case, as in the other Alabama cases, and no question of venue was presented.

Recurring to the case of Plummer-Lewis, etc., Co. v. Francher, 111 Miss. 656, upon which the appellee relied in the presentation of the question now before this court to the circuit judge, we have further to say: That the case did not involve the question of the right to a change of venue.

We trust the court will understand that we do not assail the constitutionality of the statute, approved February 19, 1918, or of any other statute. We admit the validity of the provision of the Act of 1918 under which this suit was begun in the circuit court of Lawrence county, but claim that the same statute by the last sentence of its first section gave the appellant, our client, the right to a change of venue. We make no such contention as was made in the case of Allen v. Smith, 84 Ohio St. 283; s. c., Ann. Cases 1912C. 611. Our contention is that if the statute shall be construed to give the right to a defendant being a natural person and denies the right to a defendant being a corporation such construction will violate the equal protection of the laws clause of the Federal Constitution.

Instruction No. 5 given at plaintiff's request is grossly erroneous, because it authorizes the jury to award plaintiff damages for profits which he would have made on the timber yet uncut. This instruction wholly ignores the fact that the original contract did not obligate the Veneer Company to purchase all the timber on the land. It was a contract to purchase one million feet, more or less of certain designated kinds of timber from the land; it did not obligate the Veneer Company to receive or pay for more than one million feet of the particular kinds of timber designated and yet the instruction authorized the award to plaintiff of damages for loss of profits on all the timber of every kind on the land yet uncut, although the timber yet on the land may be largely or even entirely of other kinds (such as pine, magnolia, chestnut, mulberry) than those specified in the contract. The instruction authorized, as well, the recovery of profits which plaintiff would have made had he been permitted to cut all of the timber, even if there were ten million feet on the lands, when the contract was for only one million feet.

Magee & Gibson, for appellee.

The contention that the right to a change of venue follows the right to sue, or quoting: "The right to sue is subject to the right to change the...