Howard v. WareHoward v. Ware
delivered the opinion of the court.
Highway 61 runs north and south through the town of Shaw in Bolivar County, at which place it is crossed by another highway running east аnd west, known as the Shaw-Indianola Road. In March, 1940, a motor truck going north on highway 61, in which the appellеe’s intestate, Linnie T. Ware, was a passenger, collided at this intersection with an automobile gоing west, owned and driven by the appellant, and Ware was killed thereby. He was employed by C. P. Cole Plying Service, Inc., the owner of the truck, as a bookkeeper, and C. P. Cole, who was driving the truck, is its presidеnt. The corporation is domiciled at Lelancl, in Washington County, in which county this action was brought agаinst the appellant and the Cole corporation. A judgment was rendered against both defendants, and Howard alone appeals.
The appellant is a householder, and resides in Sunflowеr County. When the case came on for trial she applied for, but was denied, a change of venue to Sunflower County under Section 495, Code of 1930', alleging that, the plaintiff had no cause of actiоn against the Cole corporation, and that it was joined as a defendant for the sole *42 purpose of enabling the plaintiff to have the case tried in Washington County. If this is true the venue should have been changed to Sunflower County.
The declaration alleges that Ware, at Cole’s direction, was accompanying him on a mission for the corporation within the scope of his employment, and we will assume that if this is true the corporation would be liable for Cole’s alleged negligence in driving the truck at the time Ware was killed. The burden of negativing this allegation on the hearing of the motion fоr a change of venue was on the movant, and we will assume, as the fact probably is, that she did not mеet this burden.
At the trial on the merits the plaintiff closed her case without introducing' any evidence tending to prove the allegation of her declaration hereinbefore stated. Whereupon thе appellant again requested, but was denied, a change of venue.
The allegations of thе declaration are not here controlling, Trolio v. Nichols,
*43 It remained оnly to determine whether the error in overruling this motion was cured by evidence of the defendants, from whiсh the jury could find that the quoted allegation of the plaintiff’s declaration is true.
No such evidence was introduced by the appellant, but her co-defendant, the Cole corporation, introduсed Cole as a witness in its behalf; and from his evidence it appears that he had endorsed a рromissory note of Ware’s, and that he and Ware wanted this liability of Cole on the note to be seсured by a deed of trust on property owned by Ware; that Ware requested him to take him, Ware, to Ruleville, where they were going when Ware was killed, for the purpose of having an attorney residing there to prepare the deed of trust. In addition, he said that this attorney represented the Cole сorporation in a pending lawsuit, and Ware intended to give him certain facts desired by him relative thеreto, for use on the trial of the case. There was no evidence that Ware was directеd by Cole to accompany him to Ruleville in order to give these facts to this attorney. On the cоntrary, the evidence clearly discloses that Cole was taking Ware to Ruleville at his request, for a purpose wholly disconnected from the business of the Cole corporation, and that giving the аttorney information relative to the corporation’s lawsuit was merely incidental to, and not the cause of, their journey; consequently no liability of the corporation under the law of master and servant arises.
The judgment of the court below will be reversed in so far as it affects the appellant, and the. order which the court below should have made, changing the venue of the casе to Sunflower County, will be entered here; and the case will be remanded for further proceedings on this order, of the same character that would have been required had the order been made by the court below.
So ordered.