Weems v. Lee

• Decision Date: 03 April 1939
• Docket Number: 33553
• Citation: 187 So. 531,185 Miss. 98
• Court: Mississippi Supreme Court
• Parties: WEEMS v. LEE

187 So. 531

185 Miss. 98

WEEMS v. LEE

No. 33553

Supreme Court of Mississippi, Division A

April 3, 1939

APPEAL from the circuit court of Forrest county HON. W. J. PACK Judge.

Personal injury action by Curtis Ray Lee, a minor, by Oscar W. Lee his father and next friend, against B. A. Weems and the City of Hattiesburg. Judgment was rendered for the defendant city. From a judgment for plaintiff against defendant Weems defendant Weems appeals. Affirmed.

Affirmed.

Rawls &amp Hathorn, of Columbia, E. F. Coleman, of Purvis, and Cephus Anderson, of Hattiesburg, for appellant.

The court erred in overruling appellant's motion for a change of venue from Forrest County to the County of appellant's household and residence, Lamar County. The court erred in overruling appellant's motion made after appellee had rested his case and the jury had been peremptorily instructed to find for defendant, City of Hattiesburg, to exclude the evidence offered on behalf of plaintiff and enter a mistrial, and change the venue to the county of appellant's household and residence, Lamar County.

We submit with confidence that the record in this case, when viewed as a whole, shows clearly and without reasonable doubt, that the City of Hattiesburg was joined in this case as a party defendant, solely for the purpose of holding jurisdiction as against appellant out of the county of his household and residence.

We submit that the record conclusively shows that appellee perpetrated a fraud in law on appellant and that this fraud resulted in appellant being denied the right which was his under Section 495, Mississippi Code of 1930, to be sued in the county of his household and residence.

15 C. J. 800, par. 98; 45 C. J. 1133, par. 45; 67 C. J. page 106, par. 168, page 107, par. 169, page 111, par. 175, page 113, par. 178; Bailey v. Light & Power Co., 38 So. 355; Miller v. Highland Ditch Co., 22 A. S. R. 255; Livesay v. Bank, 118 A. S. R. 124; Burgin v. Smith, 141 So. 762; Trolio v. Nichols, 133 So. 207; Nicholson v. G. M. & N. R. R., 172 So. 306.

Where two or more parties act each for himself, and independently of each other in a proceeding, the results of which may be injurious to another, they cannot be jointly held liable for the acts of each other.

Livesay v. First National Bank, 118 A. S. R. 120; Miller v. Highland Ditch Co., 22 A. S. R. 254; Trolio v. Nichols, 133 So. 207, 160 Miss. 611; Nicholson v. G. M. & N. R. R., 172 So. 308.

We submit that appellant's motion to transfer the cause to the county of his household and residence should have been sustained, and the failure of the trial court to sustain said motion was and is prejudicial and reversible error and a denial to appellant of a substantial right guaranteed to him under the law.

Bailey v. Delta Electric Light & Power Co., 38 So. 355; Miller v. Highland Ditch Co., 22 A. S. R. 254; Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811.

We submit that appellant was entitled to a directed verdict at the close of appellee's testimony and certainly to a directed verdict at the close of the entire case.

An owner of premises is liable for an injury received on the premises or an abutting street or highway when, and only when, he has failed to perform some duty owed by him to the party injured, and such failure was the proximate cause of the injury.

An owner of property or premises may be liable for an injury not only where it was caused by the negligent acts of his employees, within the scope of their employment, upon the premises, but also where it was caused by an act, connected with the property, which he permitted another to do, or by a defective or dangerous condition of the premises, which he permitted another to create. On the other hand, the fact that the negligent act which caused the injury was done on a person's land or property will not render him liable where he had no control over the persons committing such act, and the act was not committed on his account.

45 C. J., pages 877, 878 and 879, pars. 309, 310 and 311.

Currie & Currie and Earle L. Wingo, all of Hattiesburg, for appellee.

Appellant and his co-defendant, City of Hattiesburg, were both guilty of negligence that contributed to the injury of appellee. The declaration stated a good joint cause of action against both defendants, and the proof overwhelmingly sustained the allegations of the declaration as to the negligence of both the defendants.

The City of Hattiesburg, appellant's co-defendant, was bound under the law to the duty of exercising reasonable care to keep and maintain this much used walk and street in a reasonably safe condition. The evidence offered by appellee showed that this shed and fire wall had been in very bad condition over a period of years, that its condition had attracted the attention of persons generally, five or six witnesses having testified that the parapet or firewall to which this heavy shed was suspended had reached the condition to where its appearance showed that it was likely to fall at any time. The shed was immediately over the walk. The weight of the shed had pulled the firewall or parapet of the building over toward the street--the evidence shows from six to ten inches-- and that this condition was observable from the street and the walk and that it had continued for several years. We submit that under this state of facts the City of Hattiesburg, co-defendant of appellant, was charged with knowledge of this condition, or, at least, it was a question for the jury to say whether or not the condition of the shed and firewall had existed for such a length of time as to charge the City with knowledge of its condition. This being true, we submit that a perfect case in law was stated and proven against appellant's co-defendant, and that the court committed error in sustaining the directed verdict for the City of Hattiesburg.

Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521; Whitfield v. Meridian, 66 Miss. 570, 6 So. 244, 14 Am. St. Rep. 596, 4 L. R. A. 834; Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L. R. A. (N. S.) 649; Hardin v. Corinth, 105 Miss. 99, 62 So. 6; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 124; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; Atkinson v. Town of Decatur, 131 Miss. 707, 95 So. 689; Byrnes v. City of Jackson, 105 So. 861, 42 A. L. R. 254; Klepper v. Seymour House Corp., 62 A. L. R. 995; 13 R. C. L., page 154, par. 134, and page 431, par. 353.

Under section 2407, Mississippi Code of 1930, each municipality is constituted a separate road district, and the mayor and board of aldermen are empowered to compel male citizens of the designated age to perform labor upon the streets, avenues and alleys, or to pay a fixed sum of money. So, it is seen that the City of Hattiesburg, appellant's co-defendant, was vested with absolute power and control over the streets, avenues, walks, etc., in the City of Hattiesburg.

Sections 2411, and 2441, Code of 1930.

In support of the contention that the defendant, City of Hattiesburg, was liable to appellee for the injury resulting under the facts testified to by his witnesses, and that in correcting the situation that the city would not be acting in its governmental capacity, but in its corporate or individual capacity, we cite the following cases:

Klepper v. Seymour House Corp., 246 N.Y. 85, 158 N.E. 29; Parker v. Macon, 99 Am. Dec. 486; Bohen v. City of Waseca, 50 Am. Rep. 564; Kiley v. City of Kansas, 33 Am. Rep. 491; 6 McQuillin, Municipal Corporations, page 5668, par. 2775.

The court heard the motion for change of venue by appellant, and heard the evidence on the motion, and found from the evidence that the City of Hattiesburg, appellant's co-defendant, was not fraudulently joined. Among other things, the order expressly states that the court "having heard testimony offered upon the same, finds that the joint defendant of the movant, B. A. Weems, was not fraudulently joined for the purpose of conferring jurisdiction upon this court, but was joined in good faith by the plaintiff, and that this court has jurisdiction to hear and determine said cause."

It is clearly demonstrated that appellant was not entitled to have the cause removed to Lamar County and that appellant's co-defendant was joined in good faith, and that said joinder was not fraudulent.

Trolio v. Nichols, 133 So. 207; Daniel v. Livingstone, 150 So. 662; Pan American Corp. v. Pate, 126 So. 480, 157 Miss. 822; Indianola Cotton Oil Co. v. Crowley, 83 So. 408, 121 Miss. 262; Dean v. Brandon, 104 So. 173.

Where the declaration alleges in good faith facts which state a joint cause of action, motion for a change of venue, after granting a peremptory instruction for resident defendant, was properly overruled, as no fraudulent joinder for purpose of fixing venue was shown.

Cox v. Dempsey, 171 So. 788, 177 Miss. 678.

Appellant devotes much argument under the first two assignments, namely, that the court erred in not changing the venue of the action to Lamar County, to the question of misjoinder. This point was not raised in the court below, and cannot be raised on appeal for the first time. We cite the following statutes and decisions as deciding this issue against appellant.

Sections 514 and 515, Code of 1930; Payne v. Stevens, 125 Miss. 582, 88 So. 165; Campbell v. Farmers Bank, 127 Miss. 668, 90 So. 436; Stauffer v. Garrison, 61 Miss. 67; Walker v. Hall, 66 Miss. 390, 6 So. 318; Jackson v. Dunbar, 68 Miss. 288, 10 So. 38; Avera v. Williams, 81 Miss. 714, 33 So. 501; Belt v. Adams, 125 Miss. 387, 87 So. 666; Aven v. Singleton, 132 Miss. 256, 96 So. 165.

Appellant could not raise the...