Natchez Coca-Cola Bottling Co. v. Watson

• Decision Date: 13 April 1931
• Docket Number: 29334
• Citation: 160 Miss. 173,133 So. 677
• Court: Mississippi Supreme Court
• Parties: NATCHEZ COCA-COLA BOTTLING CO. v. WATSON

133 So. 677

160 Miss. 173

NATCHEZ COCA-COLA BOTTLING CO. v. WATSON

No. 29334

Supreme Court of Mississippi

April 13, 1931

Division A

1. CORPORATIONS. Where accident resulting in death occurred in J. county, circuit court of J. county had jurisdiction of action for death against domestic corporation domiciled in another county (Code 1930, sections 495, 4140).

Code 1930, section 495, provides that civil actions against domestic corporations, of which the circuit court has original jurisdiction, shall be commenced in the county in which such corporation is domiciled, or in the county where the cause of action accrued, except where otherwise provided.

2 CORPORATIONS.

Domestic corporation is required to maintain office in county of its domicile (Code 1930, section 4140).

3 CORPORATIONS.

When office of domestic corporation in county of domicile is in charge of its officers, it need not designate resident agent for service of process (Code 1930, section 4140).

4 CORPORATIONS.

Domestic corporation cannot escape liability to suit on transitory cause of action in county where cause of action accrued by failing to designate resident agent for service of process (Code 1930, section 4140).

5. CORPORATIONS.

Domestic corporation must maintain office in county of domicile in charge of officers or designated agent for service of process (Code 1930, section 4140).

6. CORPORATIONS.

Domestic corporation may be sued on transitory cause of action in county where cause of action accrued, by service of process on officer or agent in charge of office in county of domicile (Code 1930, section 4140).

7. DEATH.

In death action, value of decedent's life expectancy is not proper element of damages (Code 1930, section 510).

8. DEATH.

In death action, plaintiff may recover present value of any pecuniary advantage which evidence discloses plaintiff might reasonably have expected from continuance of decedent's life (Code 1930, section 510).

9. AUTOMOBILES. Driver of truck engaged to sell Coca-Cola on designated route on commission basis held servant, and not independent contractor, rendering employer liable for driver's negligence.

Driver of truck which struck pedestrian was engaged by Coca-Cola bottling company to sell its products in designated territory on a commission basis. The truck was furnished by the company and it supplied all oil and gas used. Driver of truck was required to account for each truck load of Coca-Cola taken out, but could return remainder for which he would be given credit.

10. AUTOMOBILES. Instruction on prima-facie liability arising from driving truck in violation of statute was properly refused, where evidence disclosed facts and circumstances surrounding accident (Code 1930, section 5588).

Code 1930, section 5588, provides, in substance, that, in action to recover damages caused by operation of motor vehicle on highway, in violation of any of the provisions of the Motor Vehicle Act, plaintiff is deemed to have made out prima-facie case by showing fact of such injury, and that motor vehicle was at time being operated in manner contrary to provisions of statute.

HON. R. L. CORBAN, Judge.

APPEAL from circuit court of Jefferson county, HON. R. L. CORBAN, Judge.

Suit by Hayes Watson, administrator of the estate of George Gibbs, deceased, against the Natchez Coca-Cola Bottling Company. Judgment for the plaintiff, and the defendant appeals. Affirmed in part, and in part reversed, and cause remanded.

Affirmed in part and reversed in part.

Kennedy & Geisenberger, of Natchez, for appellant.

If no defendant is served with process in the county in which the suit is brought, the jurisdiction of the court does not attach.

Perry v. Nolan & Maris, 131 So. 253.

It is our construction of section 500 of the Code of 1927, that the circuit court shall have jurisdiction of any civil action commencing in the county where the cause of action accrue but there must be legal process for the defendant to give the court jurisdiction, even though a suit may be brought in a county where a cause of action accrue, the court will not have jurisdiction to proceed unless process as authorized by law be obtained upon the defendant, and there is no authority to issue the sole and only process to another county.

No resident agent is shown to have been designated under the laws of 1928 by appellant and therefore, the suit must be brought in the county where an agent of the corporation is found.

The damages which the statute permits to be recovered are such damages as the jury may determine to be just, taking into consideration all damages of every kind to the decedent and all damages of every kind to any and all parties interested in a suit. The value of the decedent's life expectancy is not an element of damages to the decedent. The appellees have the right to recover not the value of decedent's life expectancy but the present value of any pecuniary advantage which the evidence might have disclosed they had a reasonable expectancy of deriving from him had he continued to live.

Gulf Refining Co. v. Miller, 116 So. 298; Gulf Refining Co. v. Miller, 121 So. 483; Belzoni Hardwood Co. v. Cinquimani, 102 So. 470; Y. & M. V. R. R. Co. v. Lee, 114 So. 866.

An independent contractor is one who contracts to do certain work according to his own methods and without being subject to control of his employer except as to result of his work.

Hinton & Walker v. Pearson, 107 So. 275.

A truck driver engaged in selling and delivering bread along a route designated by the baking company from whom he purchased bread, over whom the baking company had no control in operating the business of selling and delivering bread to patrons, is not an employee of the baking company so as to create liability for the death of a child killed by the truck while being operated over such route.

Crescent Baking Co. v. Denton, 112 So. 21.

Section 2985 of the Code of 1930 prescribes the method of process on corporations. The only authority for sending process to another county is in suits against railroads, sleeping car, telephone and telegraph companies, etc.

The cases of Gulf & Ship Island R. R. Co. v. Boone, 120 Miss. 632, 82 So. 335; Mississippi Oil Co. v. Smith, 95 Miss. 528; and Cumberland Telephone Co. v. Anderson, 89 Miss. 731, 41 So. 236, have been overruled by this court.

New Deemer Manufacturing Co. v. Alexander, 85 So. 104; Belzoni Hardwood Co. v. Cinquimani, 102 So. 471; Yazoo & Mississippi Valley Railroad Co. v. Baringer, 103 So. 86.

Truly & Truly, of Fayette, for appellee.

The lower court had jurisdiction of this case under section 500 of Hemingway's Code of 1927.

Morrimac Veneer Co. v. McCalip, 129 Miss. 671, 92 So. 817.

A domestic corporation may be sued not only in the county of its domicile, where its designated agent resides, but also in the county where the cause of action may occur or accrue, and this because the circuit court venue statute above quoted expressly so provides.

Sanford v. Dixie Construction Co., 128 So. 887; Batson & Hatten Lumber Co. v. McDowell, 131 So. 880.

From the death of an orphan, his surviving brothers and sisters may recover the present value of his life expectancy.

Gulf & Ship Island R. R. Co. v. Boone, 120 Miss. 632, 82 So. 335.

The evidence clearly shows that the Coca-Cola Company employed Goza to handle their product for them. They furnished him a truck, gas and oil; they paid him three cents a case commission for every full box handled and one cent for every empty box returned. He was charged with whatever amount of coca-cola he took out in the morning but he was credited with whatever portion of it remained unsold and was returned at night. These facts show that he was not an independent contractor.

It was error to refuse the following instruction:

"The court instructs the jury for the plaintiff that the law of this state requires the person operating a motor vehicle to give or cause to be given reasonable warning of its approach upon approaching a person walking in the roadway of the highway; that said law further requires the person operating a motor vehicle to pass foot passengers walking in the roadway of said highway at a rate of speed not to exceed eight (8) miles per hour; and if you should believe from the evidence that defendant was violating either or both of these laws at the time of the injury, and should further believe from the evidence that said injury was caused by the operation of said motor vehicle, then the plaintiff is deemed to have made out a prima facie case.

Sections 6681, 6683 and 6690, Hemingway's 1927 Code.

Argued orally by L. T. Kennedy, for appellant, and by Everett Truly, for appellee.

OPINION

Cook, J.

Hayes Watson, administrator of the estate of George Gibbs, deceased, filed this suit in the circuit court of Jefferson county, against the Natchez Coca-Cola Bottling Company, a domestic corporation domiciled in Adams county, Miss. , seeking to recover damages for the death of the said George Gibbs, a colored boy seventeen years old, who was struck and killed on a public road in Jefferson county by a truck owned by the said bottling company, and being driven at the time by Alex Goza. There was no resident defendant in Jefferson county, and a summons was issued by the circuit clerk of Jefferson county to the sheriff of Adams county for service on the defendant bottling company, and it was served by the sheriff of Adams county on William Kendall, an officer of such company.

William Kendall, individually, and Kennedy and Geisenberger attorneys, as amicus curiae, filed a suggestion that the circuit court of Jefferson county was without jurisdiction of the cause, for the reason that the defendant was a domestic...