Pan-American Petroleum Corporation v. Pate

• Decision Date: 03 March 1930
• Docket Number: 28400
• Citation: 157 Miss. 822,126 So. 480
• Court: Mississippi Supreme Court
• Parties: PAN-AMERICAN PETROLEUM CORPORATION et al. v. PATE

126 So. 480

157 Miss. 822

PAN-AMERICAN PETROLEUM CORPORATION et al. v. PATE

No. 28400

Supreme Court of Mississippi

March 3, 1930

Division B

1. MASTER AND SERVANT. Liability on policy issued in favor of alleged agent and principal on truck operated in business in which injury occurred held admissible to prove relationship alleged.

Where there is a disputed issue of fact in a suit for damages as to whether one of the defendants was the agent of another defendant, against each of whom a suit, has been brought, a liability or indemnity policy issued in favor of both the alleged agent and the alleged principal, upon truck operated in the business in which the injury occurred or resulted from, is admissible as tending to prove that the alleged principal was the principal and the alleged agent was an agent instead of an independent contractor.

2. MASTER AND SERVANT. In action for injuries resulting from selling mixture of gasoline and kerosene as kerosene evidence held to present jury issue whether principal and agent relation existed between defendants.

Where there is a disputed question of fact as to whether a defendant in a damage suit was the agent of another defendant, or was an independent contractor, and where there are many lists of instruction, order blanks, and ticket sales blanks indicating the relation of principal and agent, and where the alleged agent is furnished material to sell and remits daily amount and profits of the sales to the alleged principal and returns property, which had been used, to the principal, and receives a commission, on the sales monthly, and where the alleged principal pays license tax for trucks and peddlers' license for agents, together with other evidence tending to show agency, the disputed question of fact is for the jury. In this case the evidence held to be sufficient to support a finding of principal and agent.

3. CONSTITUTIONAL LAW. Venue. Corporation or individual jointly sued with another in county in which joint defendant may be found cannot change venue to county of residence; statute an thorizing change of venue to county of defendant's residence, not withstanding codefendant is subject to action in county, held applicable only to public officer; statute authorizing change of venue to county of defendant public officer's residence, not withstanding joinder of codefendant subject to action in county, held not discriminatory (Hemingway's Code 1927, section 600).

Under section 500, Hemingway's 1927 Code, providing that, if a public officer be sued in any action, out of the county of his household and residence, although a surety or sureties or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed, on his application before the jury is impaneled, to the county of his household and residence, a corporation, or private individual jointly sued with another defendant in a county in which such joint defendant may be found, is not authorized to change the venue to the residence or domicile of the corporation or individual so sued. It is applicable only to officers and has a reasonable basis growing out of the duty of the officer to be in his jurisdiction to perform public services to make it a reasonable classification. Such exception in favor of an officer is not a distinction against other persons.

4 DAMAGES. Disfiguration, after pain and suffering resulting from injury have ceased, is not element of damages; instruction authorizing damages for humiliation flowing from disfiguration held error.

In a suit for damages for personal injuries accompanied by pain and suffering and disfiguration, it is error to instruct the jury that the jury may compensate the plaintiff for humiliation and embarrassment flowing from the disfiguration during the life of the plaintiff. Such disfiguration is not an element of damage after physical pain and suffering have ceased. Bonelli v. Branciere, 127 Miss. 556, 90 So. 245, cited.

ON SUGGESTION OF ERROR. (Division B. June 2, 1930.)

1. APPEAL AND ERROR.

Error in allowing note to reach juror without knowledge of judge did not require reversal when having no reference to case. The noteshowed on its face that it had no reference to case and could not influence jury, and testimony also showed that within reason the note could not have been the transmission of a message in code, nor could it have carried any meaning except in regard to stated business affair needing attention at home about which the wife, who wrote it, desired advice from her husband.

2. APPEAL AND ERROR.

Finding of judge on motion for new trial that note given to juror had no reference to case had same effect as original finding.

3. NEW TRIAL.

Jurors cannot be questioned in respect to communication reaching jury from outside without sufficient predicate therefor in motion for new trial.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Prentiss county HON. C. P. LONG, Judge.

Action by Dexter Pate, by his guardian and next friend, against the Pan-American Petroleum Corporation and others. Judgment for plaintiff and defendant appeals.

Reversed and remanded.

On suggestion of error. Overruled.

Judgment reversed, and cause remanded. Suggestion of error overruled.

Wells, Jones, Wells & Lipscomb, of Jackson, Lloyd J. Cobb, of New Orleans, La., and Friday & Windham, of Booneville, for appellants.

A verdict should be set aside when it is shown that a note or a letter was handed in to one of the jurors during the retirement and deliberations of the jury without the permission, knowledge or consent of either the court or counsel for defendants.

Barnett v. Eaton, 62 Miss. 768; May v. State, 54 So. 70.

The defendant Brown was an independent contractor and not an agent of the Pan-American Petroleum Corporation; the defendant Senter was the servant of the independent contractor Brown and not of the Pan-American Petroleum Corporation; and the Pan-American Petroleum Oil Company is therefore not liable for the acts of either Brown or Senter.

Gulf Refining Company et al. v. Wilkinson, 114 So. 503; Callahan Const. Co. et al. v. Rayburn, 110 Miss. 107, 69 So. 669; Till v. Fairbanks Company, 111 Miss. 123, 71 So. 298; New Orleans, Baton Rouge, Vicksburg & Memphis R. R. Co. v. J. J. Norwood, 62 Miss. 565, 18 R. C. L., p. 492; Crescent Baking Company v. Denton et al., 147 Miss. 639; 112 So. 21; Hutchinson-Moore Lumber Co. v. Pittman, 122 So. 191; New Orleans & Northern Railroad Company v. Reese, 61 Miss. 581; Sams v. Arthur et al., 133 S.E. 205-208; Fairchild v. New Orleans, etc., 60 Miss. 931; Texas Company v. Brice, 26 F.2d 164; Harris v. McNamara et al., 12 So. 103; Aldrich v. Tyler Grocery Co. et al., 206 Ala. 138, 89 So. 289; Larson v. Centennial Mill Co. et al., 40 Wash. 224, 82 P. 294, 111 A. S. R. 904; Gulf Refining Co. et al. v. Harris, 117 S.E. 274; Marion Shoe Co. v. Eppley, 104 N.E. 65; Gall v. Detroit Journal Co., 158 N.W. 36; Premier Motor Mfg. Co. v. Tilford, 111 N.E. 645; Norton v. Day Coal Co., 180 N.W. 905.

A motion for change of venue by a defendant, to the county of his household and residence should be sustained, even if a corporation, having agent served with process in county where suit is filed, is a joint defendant.

Section 500, Hemingway's Code of 1927.

An instruction authorizing the jury to award plaintiff damages for any and all mental pain and suffering endured up to the present or which he may reasonably be expected to suffer in the future as a proximate result, and also for any humiliation or embarrassment that he has or may reasonably be expected from the proof to endure on account of his scars or deformed condition, without reference to whether or not this mental suffering and embarrassment and humiliation is accompanied with physical pain or not is erroneous.

Bonelli et al. v. Branciere, 127 Miss. 556, 90 So. 245; Western Union Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823, 13 L.R.A. 859, 24 Am. St. Rep. 300; Dorrah v. I. C. R. R. Co., 65 Miss. 14, 3 So. 36, 7 Am. St. Rep. 629; Grenada Bank v. Lester, 89 So. 2; So. P. Co. v. Hetzer, 135 F. 272, 68 C. C. A. 26, 1 L.R.A. (N.S.) 288; J. J. Newman Lumber Co. v. Norris, 130 Miss. 751, 94 So. 881.

By implication the court's silence with reference to the action of the lower court in not permitting appellants to show that a communication had reached the jury to the effect that appellants had offered twenty thousand dollars in settlement of the case was tantamount to saying that the court's said action would merely work a reversal of the case as to damages alone. The court should have reversed as to liability also.

J. A. Cunningham, F. W. Cunningham, J. S. Finch, and Lacy & Lacy, all of Booneville, for appellee.

A liability insurance policy is admissible in evidence to show that the relationship of principal and agent exists between two defendants.

Finkbine Lumber Co. v. Cunningham, 101 Miss. 292; Vaughn v. Davis, 121 S.W. 786; Robertson v. Hill, 111 P. 871; Haygood v. Ogasapian, 112 N.E. 619.

Before the supreme court will review the action of a lower court in overruling a motion for a new trial, the reasons offered for such new trial shall have been reduced to writing by the complaining party and embraced in the motion for a new trial.

Sec. 603, Hemingway's Code 1927; Barney v. Scherling, 40 Miss. 320; Armstrong v. Gaddis, 32 So. 917; Richberger v. State, 44 So. 772.

A motion for a new trial should be overruled when the testimony failed to show that any of the jurors are corrupted or influenced by any outside influence whatever, and that no corrupt means were used in conveying a note to juror, which had no relation to case.

Easterling Lumber Co. v. Pierce, 64 So. 462.

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