Opinion
No. 32259.
May 18, 1936. Suggestion of Error Overruled September 28, 1936.
1. STATUTES.
Statute will not be given retroactive effect unless it is manifest from language that Legislature intended statute to so operate.
2. MUNICIPAL CORPORATIONS.
Statute providing that, where streets of municipality are used by state highway department as part of primary road system, municipalities shall not be liable for negligence in maintenance or repair of streets, held not to provide for abatement of cause of action accruing prior to enactment of statute (Gen. Loc. Priv. Laws 1935, Ex. Sess., chap. 32).
3. MUNICIPAL CORPORATIONS.
Prior to enactment of statute providing that municipalities should not be liable for negligence in maintenance or repair of streets used by state highway department as part of primary road system, fact that state highway department had taken over city streets for construction and maintenance did not release city from obligation to use ordinary care to keep streets in reasonably safe condition for use of persons exercising reasonable care for their own safety (Gen. Loc. Priv. Laws 1935, Ex. Sess., chap. 32).
4. MUNICIPAL CORPORATIONS.
Questions whether injury was caused by stumbling over cement blocks left in city street and whether stones had been in street length of time sufficient to charge city with notice of their existence held for jury.
5. DEATH.
Seven hundred sixteen dollars for broken hip held not inadequate where evidence justified conclusion that most of suffering and subsequent death resulted from physical illness pre-existing injury, and that injury only contributed in slight degree to suffering.
APPEAL from circuit court of Lamar county. HON. HARVEY McGEHEE, Judge.
Davis Davis, of Purvis, and John A. Yeager, of Lumberton, for appellant.
We most earnestly insist that the statutes select and designate a state system of primary highways and place them under the full jurisdiction, supervision and control of the state highway commission. That the Jackson highway, or U.S. highway No. 11, runs through the city of Lumberton, in Lamar county, and in its route through the city, it occupies Third street as a link in said state primary highway. That the Legislature by express statute had selected and designated the said highway as a state primary highway and placed it under the direct supervision and control of the state highway commission with full jurisdiction over the same and that the said statutes and the action of the state highway commission in taking the actual possession, control and jurisdiction of the said highway, divested the city of Lumberton of its jurisdiction, supervision, power and control over said street used as a part of said highway in its route through the city of Lumberton.
Section 170, Amendment, Constitution of the State; Chapter 278, Laws of 1924; Chapter 218, Laws of 1926; Chapter 45, Extraordinary Session of the Legislature of 1928; Chapter 47, Laws of 1930; Chapter 222, sections 4996, 5021, 6360, Code of 1930; Chapter 396, Laws of 1934; Chapter 82, Laws of 1928.
In Mississippi the Legislature has plenary power over the streets of municipalities. It has power to divest the municipalities of all control over their streets. It is a question of legislative will and intent and not a question of power.
City of Meridian v. Telegraph Co., 72 Miss. 912, 18 So. 84; Dillon Mun. Corp., pars. 680, 683, 701; Smith Mun. Corp., par. 1309; Village of Ridgeland v. Madison County, 122 So. 753.
Chapter 32, Extraordinary Session of the Legislature of 1935, by implication, repeals section 2414, Mississippi Code of 1930, insofar as that section gives municipalities exclusive jurisdiction and control over their streets and sidewalks. It relieves and absolves the municipality from liability for negligence in the maintenance or repair of the streets made a part of the state primary highway system. While the statute is not a direct repeal of any part of section 2407, it does by necessary implication repeal the statute to the extent stated. It divests the municipality of the full jurisdiction and control of all streets in the municipality used as a part of the state primary highway system and confers upon the state highway department jurisdiction and control over such highways. There is no such saving clause in the act and being a repeal statute, it should be given a retroactive construction, and, if given this construction, it abrogates the liability of the municipality, if any, for negligence in the maintenance or repair of that part of the streets of the municipality constituting a part of the state primary highway system, including the claim of appellees for damages for the injuries sustained by their intestate.
The general rule against the retrospective construction of statutes does not apply to repealing acts, and, in the absence of a saving clause or other clear expression of intention, the repeal of a statute has the effect, except as to transactions passed and closed, blotting it out as completely as if it had never existed, and of putting an end to all proceedings under it.
59 C.J. 1185, par. 722; 59 C.J. 1188, par. 725; Crow v. Cartledge, 99 Miss. 281, 54 So. 947.
There is no allegation in appellees' declaration that the alleged injury in this case arose out of any contract relation, and there being no contract relation there is no vested interest.
12 C.J. 947, par. 551; Carson v. Gore-Meenan Co., 229 Fed. 765.
The measure of the duty of a municipality in the maintenance of its streets is to use ordinary care to keep them in a reasonably safe condition for persons using ordinary care and prudence.
Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 474; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; McComb City v. Hayman, 124 Miss. 525, 87 So. 11.
We submit that appellees' evidence taken as a whole shows that the street at the time and place in question was in a reasonably safe condition for use by parties using ordinary care for their own safety, and that the motion of appellant for a directed verdict should have been sustained.
The burden of proof was upon appellee to show by preponderating evidence that the appellant was guilty of "real wrongful or negligent act, or omission" and that this was the proximate cause, or at least a directly contributing cause, of Mrs. Schrader's death.
Berryhill v. Nichols, 158 So. 470.
A municipality does not establish and maintain its streets for profit nor does it assess or collect any dues, except for the upkeep and maintenance of its streets in reasonably safe condition, so that persons using ordinary care may safely traverse them.
Dow v. Town of D'Lo, 152 So. 474, 169 Miss. 240.
So the maintenance of the streets by a municipality partakes more of a governmental function than of a proprietary capacity and for this reason the degree of legal responsibility is greatly minimized.
Rome v. London, etc., Co. of America, 157 So. 175, 160 So. 121; City of Greenville v. Laury, 159 So. 121.
There is vested right in accrued cause of action springing from contract.
Harris v. United States, 5 F. Supp. 368; 50 U.S.C.A., Appendix, par. 24; Woodson v. Deutsche Gold and Silber Scheideanstalt Vormals Roessler, 54 S.Ct. 804, 292 U.S. 449, 78 L.Ed. 1357, 68 F.2d 391, 62 App. D.C. 344, 54 S.Ct. 562, 291 U.S. 657, 78 L.Ed. 1049; Hazzard v. Alexander, 173 A. 517.
There can be no vested right in claim for damages for statutory tort, not connected with contractual relation until judgment is rendered, since, prior to judgment claim is mere expectancy or inchoate right, not assignable nor liable to attachment, and not debt, but rule that vested right of action is property protected from arbitrary legislation applies to rights of action springing from contract or common law.
Hazzard v. Alexander, 173 A. 517; C.J. Annual Annotations 1935, p. 591, par. 551.
When all of the evidence is taken into consideration, the amount of damages awarded by the jury cannot be said to be grossly inadequate.
Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Belzoni Hardwood Lbr. Co. v. Langford, 89 So. 919.
J.M. Morse, of Poplarville, and Roy Bridges, of Purvis, for appellees.
We submit to the court that it makes no difference whether the highway department was given the control over the street in question by the Legislature or the city council that this in nowise affects the law. That it is the duty of the city to keep the streets, alleys, and sidewalks, including its gutters and storm sewers, in a reasonably safe condition for the traveling public.
Town of Senatobia v. Dean, 157 Miss. 207, 127 So. 773.
This cause of action in the heirs at law of Mrs. Schrader became vested in them on her death in July, 1935, and if the statute which in nowise repeals sections 2407 or 2414, of Mississippi Code of 1930, has no retroactive clause, could not effect their rights, the statute becoming a law in October, 1935.
25 R.C.L., Statutes, pars. 34-35, 36-37, pp. 786, 787, 788, 789; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; State ex rel. v. Cloud, 146 Miss. 642, 112 So. 19; McCreight v. Scales, 134 Miss. 303, 99 So. 257.
Statutes will always be given prospective operation if possible.
State ex rel. v. Tank Cor. Co., 151 Miss. 797, 119 So. 311; State ex rel. v. Grocery Co., 156 Miss. 99, 125 So. 710; Bell v. Bank, 130 So. 486; R.R. Co. v. Hattiesburg, 163 Miss. 311, 141 So. 897.
The concrete blocks or slabs were a stumbling block and known to all to be dangerous. Mrs. Schrader forgot their presence.
A mere failure to remember a known defect in a way or temporary forgetfulness which results in an injury, does not necessarily constitute contributory negligence.
McQuillin Municipal Corp. (2 Ed.), par. 3015; Natchez v. Lewis, 90 Miss. 310, 43 So. 471; Birdsong v. Mendenhall, 97 Miss. 544, 52 So. 795; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 184; Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547.
These great slabs or blocks of irregular concrete which apparently were pieces of a defective curb, were permitted to stay in this approach to the post office simply because the state highway department used a part of the street for the federal highway.
Senatobia v. Dean, 157 Miss. 207, 127 So. 773; Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452; Kinson v. Town of Decatur, 131 Miss. 707, 95 So. 689.
This court has held in cases too numerous to be cited that the instructions of both appellant and appellee are to be taken together and that if one side securing erroneous instructions, then if other instructions are given by the court which cure this defect, the court will not disturb the verdict.
Y. M.V. Ry. v. Williams, 87 Miss. 344, 39 So. 499; M. R. Ry. v. Hardy, 88 Miss. 732, 41 So. 505; Y. M.V.R.R. v. Kelly, 98 Miss. 367, 53 So. 779; Am. Ins. Co. v. Autrim, 88 Miss. 518, 41 So. 257; Hett v. Terry, 92 Miss. 671, 46 So. 829; M. V.R.R. Co. v. McGehee, 93 Miss. 196, 46 So. 716; Cum. Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614; A. V. v. Groom, 97 Miss. 201, 51 So. 705.
Our court has held, under section 510 of the Mississippi Code of 1930, that companionship is an element of damages. This court is committed to the doctrine that under this statute the proper parties have a right to recover the pecuniary value as estimated by the jury of the loss of companionship and society.
St. L. S.F.R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 39 L.R.A. (N.S.) 978, Ann. Cas. 1914B, 597; I.C.R.R. Co. v. Fuller, 106 Miss. 65, 63 So. 265; G. S.I.R. Co. v. Boone, 120 Miss. 632, 82 So. 335; Jackson v. Port Gibson, 146 Miss. 696, 111 So. 828; New Demmer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104; Moore v. Johnson, 148 Miss. 827, 114 So. 734.
The verdict was grossly inadequate.
Scott v. Y. M.V.R.R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; Murphy v. Cleveland, 106 Miss. 269, 63 So. 572, Ann. Cas. 1915B, 454; White v. McRee, 111 Miss. 199, 76 So. 804; Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143; Coccora v. Vicksburg Light, etc., Co., 126 Miss. 713, 89 So. 257; McLaughlin v. R.W. Fagan-Peel Co., 125 Miss. 116, 87 So. 471; Ozen v. Sperier, 117 So. 117; Mosely v. Jamison, 68 Miss. 336, 8 So. 744; Belzoni Hardwood Lbr. Co. v. Langford, 89 So. 919; Huff v. Bear Creek Mill Co., 116 Miss. 509, 77 So. 306.
We respectfully submit that this case should be remanded for inadequacy of damages, the liability being already fixed, and that this court should direct the lower court to conduct a writ of inquiry for damages only.
J.F. Schrader and the children of his wife, Mrs. J.F. Schrader, now deceased, filed suit in the circuit court of Lamar county to recover damages for personal injuries alleged to have been sustained by Mrs. Schrader because of the negligence of the city in failing or refusing to keep that part of Third street in front of the Lumberton post office in a safe condition for use by the appellees' intestate as one of the general public. Third street in the city of Lumberton is a part of the Mississippi-United States highway No. 11.
J.F. Schrader and his wife approached the post office for the purpose of securing a money order to buy certain planting seed. Mrs. Schrader got out of the automobile to go into the post office and fell, breaking her hip, and she died some five weeks after this injury.
The appellant contends that her death was not caused by the fall, but was the result of a disease which, it is claimed, she was afflicted with prior to the fall.
The testimony of the witnesses for the appellees shows that Mrs. Schrader got out of the automobile, started into the post office, and stumbled over some concrete rocks, or pieces of concrete, which had been left in the street for a long time, two years or longer. It seemed to be the theory of these witnesses that these pieces of concrete, or debris, near the post office, had been there since the completion of the post office, that this condition was known by the city, and that it constituted an apparent danger to persons who came to the post office in automobiles.
It was the theory of witnesses on behalf of the city of Lumberton that it was not liable, at all events, because the Legislature, by chapter 32, Laws of Extraordinary Session of 1935 (Gen. Loc. Priv.), which became a law in October, 1935, provided: "That whenever the streets of a municipality are used by the state highway department as a part of its primary road system, that said state highway department shall maintain the streets so used at its own expense, and as a part of the highway system; that on the streets so thus made a part of the state highway system, that the municipalities shall not be liable for negligence in the maintenance or repair of said streets so thus apportioned to the state highway department." This act was approved October 2, 1935.
The injury in the case at bar occurred on March 2, 1935, but it is urged that the effect of the act was to take away all rights of action which had accrued prior to its passage which had not been reduced to judgment.
There was conflict in the evidence on the merits as to whether Mrs. Schrader's injury was caused by her stumbling against the stones or falling from the running board of the automobile. Witnesses for the city testified that she fell from the running board of the automobile and that her injuries were caused thereby. There was conflict also in the evidence as to whether the pieces of concrete were actually in the street at the time of the injury. The city introduced the street commissioner and the foreman of the street operations, who testified that no such stones were there at the time of the injury, and that they frequently observed the streets, and that the stones had not been in the street for the length of time testified to by the witnesses for the appellees. The city also introduced a report of death signed by a physician, which had been filed with the department of vital statistics, certifying that the deceased died from cancer.
Testimony from the appellees showed that Mrs. Schrader, the deceased, had been operated on, or treated, for alleged cancer some eight or ten years prior to her death, and that she had suffered no inconvenience or ill health from such disease since said treatment.
The court below rendered a judgment for the appellees for seven hundred sixteen dollars, from which the city of Lumberton appeals directly, and the appellees prosecute a cross-appeal as to the sufficiency of the judgment for the pain and suffering.
We are of the opinion that the statute referred to, chapter 32, Extraordinary Session of 1935, does not specifically provide for the abatement of any cause of action then in existence, nor does it expressly repeal any other act or acts. It is a familiar rule of the construction of statutes that they will not be retroactive, unless it is manifest, from the language, that the Legislature intended it to so operate. 25 Mississippi and Southern Digest, title, Statutes, Key Nos. 261 to 277, citing, among other cases, the following: Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Power v. Calvert Mtg. Co., 112 Miss. 319, 73 So. 51; State v. Miller, 144 Miss. 614, 109 So. 900. See, also, Barrington v. Barrington, 200 Ala. 315, 76 So. 81. Many other cases to the same effect in this state and other states could be cited, but we deem the above sufficient to show that the statute should not be construed so as to affect transactions occurring prior to its passage.
This court has held in several cases prior to the enactment of chapter 32, Extraordinary Session of 1935, that the fact that the state highway department had taken over city streets for construction and maintenance did not release the city from the obligation to use ordinary care to keep its streets in a reasonably safe condition for the use of persons who exercise reasonable care for their own safety. Town of Senatobia v. Dean, 157 Miss. 207, 127 So. 773; Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452, and Atkinson v. Town of Decatur, 131 Miss. 707, 95 So. 689.
In view of the conclusion we have reached, it is not necessary to decide whether it is within the power of the Legislature, under sections 14 and 24 of the State Constitution, to deprive a person of a right of action which has accrued. It is stated in 62 C.J., p. 1150, sec. 60, notes 32 and 33, that an action for tort accrues immediately on the commission of the tort. The question might be a difficult one, but, as to this, we express no opinion.
We think that the evidence was in such conflict that it became a question for the jury to decide whether the injury was occasioned as claimed by the appellees, and whether the stones had been in the street the length of time to charge the city with notice of their existence.
On the cross-appeal we think there is such a state of evidence that the jury may have concluded that most of the suffering and cause of death of Mrs. Schrader may have resulted from physical illness pre-existing the injury, and that the injury only contributed in a slight degree to her suffering.
The judgment of the court below, therefore, will be affirmed both as to the direct appeal and the cross-appeal.
Affirmed.