22 So. 2d 490 | Miss. | 1945
About nine o'clock on the evening of May 25, 1944, appellees' decedent, John Patterson, was driving a farm tractor northward on paved highway No. 45 in Prentiss county. The tractor carried no lights. Riding on the rear fender of the tractor was a boy named Cecil Jones, fourteen years of age. The declaration alleged that Jones "agreed and promised the said John Patterson . . . that he would exercise all diligence and care to give Patterson timely notice of all approaching traffic, and plaintiffs' said decedent relied upon the promise and *560 undertaking of said defendant (Cecil Jones) in the course of travel by tractor on said highway." The declaration avers that a cattle truck driven by the defendant Martin approached from the south at a reckless and dangerous rate of speed, and that although Martin saw the tractor in the road ahead of him, he disregarded it nevertheless and ran into and upon the tractor with the result that appellees' decedent, the driver of the tractor, was killed; that Jones on the tractor who had agreed to give warning failed to do so until it was too late to turn the tractor off the road, which could have been done, avoiding injury, had Jones given warning of the approach of the cattle truck in time.
It is admitted that Martin was the servant of the other defendants, Long and Spicer, and that at the time he was engaged in the business of his employers and within the scope of his employment, and it is admitted that the defendants, Martin and Long and Spicer, were and all the while have been residents of Lee County, and that the boy, Cecil Jones, is a resident of Prentiss County. The action was brought in Prentiss County by joining the minor resident as a defendant. Before taking any other steps the nonresident defendants moved the court to order a change of venue to Lee County on the ground that there was no cause of action against the minor and that he was joined only for the purpose of venue in his county. At this time no plea had been filed by the minor raising the defense of minority, and there was no mention in the declaration that Joes was a minor. When the minor's plea came in setting up the defense of minority, the non-resident defendants duly renewed their motion for a change of venue, which was overruled. On the trial a verdict and judgment was rendered against the non-resident defendants, but the verdict was in favor of the minor defendant.
The first question which must be determined is whether the non-resident defendants were entitled to the peremptory charge requested by them. If so, the question *561 of venue would disappear. Under the established rule that all evidence, and all the reasonable inferences that may be drawn therefrom, are to be taken as true in favor of the party against whom the peremptory is asked, we are unable to say that there is not enough here to go to the jury. And thus we are brought to the question of the change of venue, and this introduces two preliminary inquiries: —
(1) Is there a duty imposed by law upon any person to warn another of an approaching or impending danger to the latter, when the person sought to be charged had and has nothing to do with putting into operation, or with the continuance in operation of, the dangerous agency which approaches? Whatever we might think of this as a moral proposition, it is a question to which the settled law gives a negative answer. As stated in the Restatement, Vol. 2 Torts, Sec. 314, "the actor's realization that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." And an illustration is given as follows: "A sees B, a blind man, about to step into the street in front of an approaching automobile. A could prevent B from doing so by a word or touch without delaying his own progress. A does not do so and B is run over and hurt. A is under no duty to prevent B from stepping into the street and is not liable to B." But the rule is otherwise where the actor undertakes to render such service, although gratuitously, and the other person reasonably relies on the performance of the undertaking. 2 Rest. Torts, Sec. 325. There the liability arises out of the consent of the actor, express or implied, to be bound to the duty, but only by such consent.
(2) May an infant be bound by his consent given in such case? Here, too, the settled law answers in the negative. Many years ago in Ferguson v. Bobo,
Section 1433, Code 1942, provides that civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and further provides that "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, before the jury is impaneled, to the county of his household and residence." In Trolio v. Nichols,
The steps here taken by the defendants entitled to the change of venue were substantially equivalent to those availed of in Forman v. Mississippi Publishers Corp.,
Much has been said in various cases to the effect that in order to obtain a change of venue or the removal of a case to the county of the real defendants, it must be shown not only that there is no cause of action against the local defendant but in addition that he was fraudulently joined, and it is said that Weems v. Lee,
There are cases, of course, and Weems v. Lee, supra, is referable to that classification, where the facts of liability vel non against the resident defendant are involved in a complicated set of circumstances from which, when fully developed, more than one reasonable conclusion might be drawn by the jury or where because of nice distinctions to be applied as a matter of law it cannot be told in advance of a full development of the case whether the resident defendant will or will not be held liable by the court. In cases of this sort the good faith of the plaintiff is a pertinent issue, but not in a case such as is here before us when the crucial issue hinges upon a simple fact, plain and precise, and which in limine is proved beyond dispute. It is to this distinction that we adverted in the fifth paragraph of the opinion in Forman v. Mississippi Publishers Corp., supra, 195 Miss., page 103,
From what has been said it follows that the verdict and judgment in favor of the minor defendant, Cecil Jones, was correct, and the same is hereby affirmed as to him. But because of the error in refusing the order for the change of venue, the judgment is reversed and vacated as to the defendants, Martin and Long and Spicer, and the cause remanded.
Affirmed in part and in part reversed and remanded. *565