83 So. 409 | Miss. | 1919
Lead Opinion
delivered the opinion of the court.
The appellee, E. A. Crowley, sued and recovered judgment against the appellants, J. H. Pettey and the Indianola Cotton Oil Company, for. damages for an assault made upon appellee by Pettey, who was the general manager and agent of the oil company, from which this appeal was taken.
The record shows that the oil company was a domestic corporation, doing a general oilmill business at Indianola, Sunflower county, and was managed and controlled by the appellant Pettey, whose home and residence was in Leflore county. The suit was instituted in Sunflower county, and service of summons was had there upon both of the appellants. The appellants appeared and filed the general issue and special plea's to the declaration. After the cause had been pending abont a year the appellant Pettey moved the court for
The testimony in the record shows the assault occurred in the following manner. Mr. Crowley, the appellee, was the bookkeeper in charge of the books and accounts of the oil company. Mr. Pettey was the general manager, having full and absolute control over the operation of the oilmill plant, including full control over the bookkeeper, its books and accounts. On the day of the assault Mr. Pettey approached the appellee Crowley near the noon hour in the office of the oil company, and stated to him that he wanted to see the books of the company, and for him (Crowley) to go to dinner and leave the safe open and books out, so that he could inspect the books and the accounts. When Crowley hesitated in complying with this demand Pettey, as testified by Crowley, cursed and abused him, and assaulted him with a deadly weapon, striking him several times and leaving him in a bruised and dazed condition. It appears from the testimony of both Pettey and Crowley that Pettey desired to inspect the books and accounts of the oil company, and it was for that purpose that he ordered Crowley to leave the books out while he went to dinner. It is also developed in the testimony that Pettey especially desired to inspect his personal account with the oil company, kept in these books by Crowley. Pettey’s defense at the trial was an effort to show justification for assaulting Crowley, but the jury, on the conflict of testimony, decided this issue of fact against him.
Reversal of the case is urged upon several grounds, which we shall now briefly consider. It is contended that the court erred in denying Pettey a change of
Appellants contend that under the plea of justification by Pettey it was error in the loAver court to refuse to permit appellant to open and close the case. We think this point is not well taken, because the- burden of proof Avas upon the plaintiff to prove his cause of action and his damages. In the absence of evidence for either party the finding would necessarily have been adverse to the plaintiff. This being true, it Avas incumbent upon the plaintiff to prove his case of un
The appellants further complain of the instructions granted the plaintiff in the lower court, and especially as to instruction No. 2. The basis of this general complaint as to the instructions is that the appellant Pettey was not acting within the scope of his employment and in furtherance of the master’s business at the time he committed the assault upon the appellee Really this point goes more closely to the heart of th-i case as to the oil company than any other raised on this appeal. Considering all of the instructions together, we find no reversible error, unless it was error to instruct the jury on the theory that the oil company could be liable for the acts of the appellant Pettey. In other words, the contention that a peremptory Instruction should have been granted for the oil company, as Pettey was acting beyond the scope of his employment and not about the master’s business when he assaulted Crowley, would be well grounded if the testimony in this record did not show clearly that Pettey was acting within the scope of his employment and in furtherance of the master’s business at the time of the assault, and that the assault was committed by Pettey while dealing with and carrying out the business of the master, the oil company.
The point urged' is clearly untenable because the proof is that Pettey was the general manager of the
We find no merit in the contention with reference to the allowance of punitive damages in this case; nor do we consider that any substantial injury was suffered by the appellants with reference to the modification of one of the instructions granted the plaintiff below. The case warrants punitive damages, and the instruction referred to was sufficiently brought to the notice of counsel for appellants.
The judgment of the lower court is affirmed.
Affirmed,.
Concurrence Opinion
(specially concurring).
It is expressly held in the opinion that: “Under the rules of pleading and practice a defendant who has filed the plea of general issue accepts the venue, and will not be allowed, especially after a year’s time, as in this case, to withdraw the plea and make application for a change of venue, which he had waived.”
The latter portion of section 707, Code of 1906 (section 486, Hemingway’s Code), expressly provides: “If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, the venue shall be changed, on his application, to the county of his household and residence.”
I do not think it necessary in this case to decide that a plea of general issue waives a right of a citizen resident to apply for a change of venue when he, as the sole defendant, has been sued in an action not local out of the county of his household and residence. There may be a difference between the technical plea to the jurisdiction which under well-known rules of pleading must be filed before a plea to the merits and an application under this statute for a mere change of venue. On this point I express no opinion. But Mr. Pettey was not the sole defendant in this action, and the court had