Opinion
No. 39838.
January 9, 1956.
1. Attachment — in chancery — dismissal of attachment — jurisdiction.
Where suit against nonresident to recover for injuries arising out of automobile collision had been commenced by attachment in chancery, Chancery Court was warranted in taking jurisdiction of suit in view of allegations as to nonresidence of defendant and of his ownership of land in State, and where jurisdiction of action had been lawfully taken, dismissal of attachment did not deprive court of jurisdiction to enter personal decree against nonresident defendant. Secs. 147, 1964, Code 1942.
2. Motor vehicles — collision — factual issue — comparative negligence — Chancellor's award to complainant — not clearly wrong.
In action by driver of automobile against truck driver for injuries sustained when automobile proceeding along street collided with truck which was driven from side road or private driveway onto street, evidence as to negligence of the respective parties presented factual issue for determination of Chancellor, and Chancellor's findings that both parties were negligent, that defendant's negligence exceeded plaintiff's negligence, and that, under comparative negligence statute, plaintiff was entitled to $1,000 for pain and suffering and loss of earning capacity were not clearly wrong. Sec. 1454, Code 1942.
3. Damages — evidence — of financial loss — admission of — not reversible error.
The admission of evidence of financial loss sustained by plaintiff by reason of damage to his automobile was error, where declaration had made no demand for such loss, but was not ground for reversal where Chancellor's award did not include as item of damages financial loss by reason of damage to his automobile.
Headnotes as approved by Holmes, J.
APPEAL from the Chancery Court of Pike County; F.D. HEWITT, Chancellor.
Reeves, Brumfield Reeves, McComb; Breed O. Mounger, Tylertown, for appellant.
I. The sole basis of chancery jurisdiction in this case being a statutory action in rem in attachment, and the attachment having failed and having been dismissed, the Court was without jurisdiction of the subject matter and the decree rendering a purely personal judgment against the defendant was therefore void. Carey v. Moore, 130 Miss. 658, 94 So. 890; Delta Ins. Realty Co. v. Interstate Fire Ins. Co., 113 Miss. 542, 74 So. 420; Dean v. Stephenson, 61 Miss. 175; Lewenthall v. Mississippi Mills, 55 Miss. 101; Griffith's Miss. Chancery Practice (2d ed.), Sec. 484.
II. The Court committed manifest and prejudicial error in rendering judgment in the sum of $1,000 in behalf of appellee, and as against the appellant, in that such decree was not supported by any theory under the evidence and was contrary to the overwhelming weight of the evidence. Mississippi Export R. Co. v. Summers, 194 Miss. 179, 11 So.2d 429.
III. The Court erred as a matter of law and fact in admitting testimony as to alleged damages to the complainant's automobile, which was not supported by nor alleged in the pleadings, and such error was prejudicial to the appellant.
Jordas S. Derbes, New Orleans, La.; Henley, Jones Woodliff, Jackson; Louis Alford, McComb, for appellee.
I. So far as judicial process is concerned a person may be treated as a nonresident where his presence in this State is not such as to give the complainant notice of the fact and a reasonable opportunity to institute suit and serve process. If he be engaged in an itinerant vocation flitting from place to place, both within and without the State, hovering here and there for a few hours or a day or two and again taking wing, he is a nonresident. The complainant is not required to fire judicial process at him as he flies, but is entitled to a fair and reasonable opportunity for a resting shot. Bonds v. Ross, 192 Miss. 610, 613, 7 So.2d 554; Sec. 2729, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Sec. 485 p. 492.
II. Our courts have consistently held that the Supreme Court is forbidden by this section to reverse a decree of the Chancery Court because of any error or mistake as to whether the case was of equity or common-law jurisdiction. Hancock v. Dodge, 85 Miss. 228, 37 So. 711; Adams v. Capital State Bank, 74 Miss. 307, 20 So. 881; Walley v. L.N. Dantzler Lbr. Co., 114 Miss. 601, 75 So. 433; Yazoo Delta Mtge. Co. v. Hutson, 140 Miss. 461, 106 So. 5; Burnett v. Bass, 152 Miss. 517, 521, 1 So.2d 456; Sec. 147, Constitution 1890; Griffith's Miss. Chancery Practice (2d ed.), Sec. 28 pp. 29-30.
III. The Lower Court found both parties guilty of some negligence but found the defendant guilty of more negligence than the complainant, and under the comparative negligence statutes of the State of Mississippi held that the complainant should recover from the defendant in proportion thereto.
IV. Findings of fact in an equity suit on conflicting evidence will not be disturbed on appeal. Mutual Life Ins. Co. v. Herron, 79 Miss. 381, 30 So. 691; Bank of Lauderdale v. Cole, 111 Miss. 39, 71 So. 260; Jackson v. Banks, 144 Miss. 392, 109 So. 905; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; Evans v. Sharbrough, 106 Miss. 687, 64 So. 466; Humber v. Humber, 109 Miss. 216, 68 So. 161; Reichman-Crosby Co. v. Dinwiddie, 117 Miss. 103, 77 So. 906; City of Jackson v. Mims, 123 Miss. 78, 85 So. 124; Fidelity Cas. Co. of N.Y. v. Cross, 131 Miss. 632, 95 So. 631; Starnes v. Nation (Miss.), 97 So. 881; Planters Gin Milling Co. v. City of Greenville, 138 Miss. 876, 103 So. 796; Steede v. Ferrer, 150 Miss. 711, 116 So. 616; Leavenworth v. Hunter, 150 Miss. 750, 117 So. 122; Stevenson v. Swilley, 156 Miss. 552, 126 So. 195; Dillard v. Wright, 19 Miss. 455, 11 Sm. M. 455; Keaton v. Miller, 38 Miss. 630; Vaughan v. Commercial Bank (Miss.), 18 So. 270; Northern Assur. Co. v. J.J. Newman Lbr. Co., 105 Miss. 688, 63 So. 209; Sellers Motor Co. v. Champion Spark Plug Co., 150 Miss. 473, 116 So. 883; Byrd v. Hendon (Miss.), 120 So. 203; Crichton v. Halliburton Moore, 154 Miss. 265, 122 So. 200; Clark v. Dorsett, 157 Miss. 365, 128 So. 79; Gross v. Jones, 89 Miss. 44, 42 So. 802; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Pannell v. Glidewell, 142 Miss. 77, 107 So. 273; McCarty v. Love, 145 Miss. 330, 110 So. 795; Rhymes v. Boggess, 146 Miss. 707, 111 So. 844; Hibernia Bank Trust Co. v. Turner, 156 Miss. 842, 127 So. 291; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Quine v. Wolcott, 165 Miss. 325, 143 So. 424.
V. It was entirely proper for complainant to show the extent of damage to his car even if no claim were made for this loss. Certainly the extent of damage to the vehicles and the nature of such damage is competent evidence in regard to the manner in which the accident occurred and the manner and extent of complainant's injuries. If the Lower Court erred in allowing this testimony then the burden is on appellant to show that this error is prejudicial before it can be considered by this Court on appeal. Appellant states that the Lower Court must have considered these damages because of the award to complainant of the sum of $1,000. Appellant completely overlooks the fact that the final decree is complete in its statement as to the elements considered in arriving at the damage when the Court said, "the Court further finds that the complainant has sustained substantial damages in pain and suffering and loss of time and earning capacity and does hereby set the amount of such damages at the sum of One Thousand Dollars ($1,000)."
The appellee, Deward J. Giroir, brought this suit as an attachment in chancery in the Chancery Court of Pike County against Thomas J. Myers, seeking the recovery of damages for personal injuries alleged to have been sustained as the result of a collision between a pickup truck driven by the appellant and a 1949 Plymouth sedan driven by the appellee. As grounds for the attachment, it was alleged that the appellant was a nonresident of the State of Mississippi and owned lands in Pike County, Mississippi.
The accident occurred on June 14, 1953, at about seven o'clock in the morning on one of the streets in McComb, Mississippi. The appellee suffered a fracture of the right shoulder, as well as sustaining other bruises and injuries. The proof for the appellee showed that he was proceeding north on Magnolia Street, at a rate of speed of about thirty miles per hour and on his right side of the road when the appellant, in his pickup truck, without warning, drove onto the street from a side road or private driveway and into the pathway of appellee's car, with such suddenness that it was impossible for the appellee to avoid the collision. On the other hand, the appellant's proof showed that the appellee was driving at an excessive rate of speed and on his wrong side of the road and thus caused the collision.
The chancellor, after hearing the evidence, dismissed the attachment but found from the evidence that both parties were negligent, and that the negligence of the appellant exceeded that of the appellee, and, applying the comparative negligence statute, Section 1454 of the Mississippi Code of 1942, he entered a decree against the appellant and in favor of the appellee for $1,000 as damages to cover appellee's pain and suffering and loss of time and loss of earning capacity. From this decree, the appellant appeals.
The appellant contends (1) that the chancery court, upon the dismissal of the attachment, was without jurisdiction to render a personal decree against the appellant; and (2) that the personal decree rendered against the appellant is contrary to the overwhelming weight of the evidence; and (3) that the court erred in admitting evidence as to the amount of damages to the appellee's automobile.
(Hn 1) As to the appellant's first contention, it is enough to say that this is answered by Section 147 of the Mississippi Constitution and Section 1964 of the Mississippi Code of 1942, which provide that no judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the grounds of want of jurisdiction to render such judgment or decree. In this case, however, the chancery court was warranted in taking jurisdiction in view of the allegations of the pleadings as to the non-residence of the appellant and his ownership of lands in Pike County, Mississippi, and having lawfully taken jurisdiction, it was entitled to proceed to and adjust the rights between the parties, though strictly legal. This principle has been well settled under the prior decisions of this Court. In the case of Atkinson, et al v. Felder, et al, 78 Miss. 83, 29 So. 767, the Court held that the fact that the equitable feature of a suit to foreclose a mortgage was not available because of a defense interposed thereto did not preclude a court of chancery from allowing a recovery on the mortgage debt, though that was based on a strictly legal right. The Court said:
"And the fact that the equitable feature of the suit is not available because of some defense arising thereto does not preclude the court from giving a recovery for the money claimed, though that, as it turns out, is based upon a purely legal right. The court, having lawfully taken jurisdiction, is entitled to proceed, and to adjust whatever rights may exist between the parties of whatever kind, and though strictly legal. This principle of the chancery court governs it in many cases analogous to foreclosure suits, and the inclination of courts is to have all the rights of parties relating to a single subject adjusted in one suit. . . . This consideration is re-enforced by section 147 of the constitution, which validates judgments and decrees of courts when rendered in mistake or in error of jurisdiction."
We have carefully examined the authorities cited and relied upon by the appellant in support of his said contention and we do not find them in conflict with the decision which we have reached.
(Hn 2) The appellant next contends that the decree of the court is contrary to the overwhelming weight of the evidence. The evidence as to the negligence vel non of the respective parties was conflicting. This presented a factual issue for the determination of the chancellor. The chancellor's findings are binding upon us unless we are able to say that they are manifestly wrong, and this we are unable to do.
(Hn 3) It is also contended by the appellant that the court erred in admitting evidence of the financial loss sustained by the appellee by reason of the damage to his automobile. The basis of this contention is that the declaration made no demand for such loss. We think this contention is sound in principle, but that it presents no grounds for the reversal of this case in view of the fact that the chancellor's award did not include as an item of damages the financial loss which the appellee sustained by reason of the damages to his automobile. It included only damages to cover the appellee's pain and suffering and loss of time and his loss of earning capacity. Hence the error of the court in admitting the evidence resulted in no prejudice to the appellant and was harmless and does not constitute reversible error.
We are accordingly of the opinion that the decree of the court below should be and it is affirmed.
Affirmed.
Roberds, P.J., and Lee, Arrington and Ethridge, JJ., concur.