Natalbany Lumber Co., Limited v. McGraw
| Citation | 188 La. 863,178 So. 377 |
| Decision Date | 10 January 1938 |
| Docket Number | 34305 |
| Court | Supreme Court of Louisiana |
| Parties | NATALBANY LUMBER CO., Limited, v. McGRAW |
Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; James D. Womack, Judge.
Suit by the Natalbany Lumber Company, Limited, against Ernest F McGraw to enjoin the defendant from prosecuting a suit in the state of Mississippi, which was consolidated for trial in the district court and for hearing in the Supreme Court with a similar suit by Wardy Daniels against Ernest F. McGraw. From an adverse judgment, the defendant appeals.
Affirmed.
Hudson Potts, Bernstein & Snellings, of Monroe, and Bramlette & Bramlette, of Woodville, Miss., for appellant.
Carroll Buck, of Amite, for appellees.
OPINION
On September 13, 1935, Ernest F. McGraw, a resident of the city of Baton Rouge, state of Louisiana, while returning from a visit to members of his family residing in the town of Woodville, state of Mississippi, was seriously injured in a collision between an automobile he was driving and a log truck, which occurred near Laurel Hill, in the parish of West Feliciana, state of Louisiana.
On February 26, 1936, McGraw filed suit in the circuit court of Wilkinson county, state of Mississippi, for the recovery of $ 37,500 as damages for the injuries he suffered in the accident. In that suit he joined as defendants the Natalbany Lumber Company, Limited, and one Wardy Daniels, alleging that the lumber company was the owner and Daniels was the driver of the log truck. He also alleged that the lumber company was a Louisiana corporation, domiciled at Hammond, La., which was authorized to do and was doing business in Mississippi, and that Daniels was a resident of Wilkinson county, Miss.
On March 7, 1936, the Natalbany Lumber Company, Limited, and Daniels, its co-defendant, instituted suits in the Nineteenth judicial district court for the parish of East Baton Rouge, state of Louisiana, seeking to enjoin McGraw from prosecuting his suit in the state of Mississippi, and on March 9, 1936, the lumber company and its codefendant filed pleas in abatement in the Mississippi court, pursuant to which no further action has been taken in that court.
Answers were filed and issue joined in both suits for injunctive relief in the Louisiana court. Subsequently, and before his cause of action could prescribe, McGraw filed suit for the same alleged tort against the Natalbany Lumber Company, Limited, in the parish of Tangipahoa, state of Louisiana, where it maintains its domicile. Wardy Daniels was not made a party to that suit.
Restraining orders which were issued in both suits were continued from time to time until October 27, 1936, when the suits by agreement were consolidated and tried together on the merits. On January 15, 1937, separate judgments were rendered in favor of the Natalbany Lumber Company, Limited, and Wardy Daniels, plaintiffs, against Ernest F. McGraw, defendant, forever enjoining the defendant from further proceeding with his action against plaintiffs in the Mississippi court. These judgments were signed on January 27, 1937, and on January 28, 1937, McGraw applied for and was granted orders of appeal therefrom. By consent of counsel the appeals were consolidated for hearing in this court, with the proviso, however, that a separate judgment be rendered in each case.
Plaintiffs, in their petitions, allege that the Natalbany Lumber Company, Limited, is and always has been a Louisiana corporation, with its domicile at Hammond, La.; that Wardy Daniels is and always has been a resident of the parish of Rapides, La.; that Ernest F. McGraw is and has been since 1920 a resident of the parish of East Baton Rouge, La.; and that the accident in which McGraw was injured occurred in the parish of West Feliciana, La.
Plaintiffs allege that McGraw's suit should have been brought in the parish of West Feliciana, where the accident occurred, or in the parish of Tangipahoa, the domicile of the Natalbany Lumber Company, Limited, or in the parish of Rapides, the domicile of Wardy Daniels, and not in Wilkinson county, state of Mississippi, which had no jurisdiction either of the parties or of the subject-matter of the suit.
Plaintiffs allege that Wardy Daniels was made a codefendant in the suit filed by McGraw in Mississippi for the purpose of evading the jurisdiction of the Louisiana courts, and in order that McGraw might obtain an advantage which he did not have or possess in those courts.
Plaintiffs allege that the practice and procedure in the courts of the state of Mississippi in the trial of personal injury suits is wholly different from that in the courts of the state of Louisiana; that personal injury cases are tried before a jury in Mississippi, the quantum of damages allowed is usually excessive, and the power of the Supreme Court of Mississippi to reverse jury verdicts is very limited as compared to that of the Supreme Court of Louisiana.
Plaintiffs allege that in Louisiana the Natalbany LumberCompany, Limited, would have a legal right to plead in the alternative the contributory negligence of McGraw, which, if established, would completely bar any right of recovery in this state, whereas, in the state of Mississippi, the plea of contributory negligence in tort actions is no bar to the recovery of damages and can only be used to diminish the damages.
The testimony in the record satisfies us as it satisfied the trial judge that Wardy Daniels is a resident of Rapides parish, La., and not of Wilkinson county, Miss. He was born and reared in Rapides parish and lives with his father and mother near the town of Boyce in that parish. Daniels follows the calling of truck driver or log hauler. In the pursuit of his calling he is often absent from his home in Rapides parish for short intervals, but during his temporary absences pays frequent visits, practically every two weeks, to his home.
The testimony shows that on September 1, 1935, Daniels accepted temporary employment as a truck driver for one of his relatives residing in Wilkinson county, Miss., and that he had only been in that state about thirteen days when the accident occurred. Previous to that time Daniels had been living at his home in Louisiana. When he left home he took with him only a few of his clothes and personal effects.
Not only had Daniels been in...
To continue reading
Request your trial