Harper v. Adams , 141 Miss. 806 ( 1925 )

The appellee sued the appellant for an injury to a mule, which injury was inflicted in justice of the peace district No. 4 of Copiah county, and recovered a judgment for eighty-five dollars, from which the appellant appealed to the circuit court. When the case reached the circuit court, the amount of the claim had not been fixed in the statement of the cause of action in the court of the justice of the peace, and a motion was made by the defendant for a judgment on the theory that the court below had no jurisdiction because the amount of damages claimed was not stated in the statement of the cause of action. The plaintiff moved to amend the statement of the cause of action, which was permitted by the court below.

The defendant also pleaded to the jurisdiction of the court in the circuit court on the ground that he was a freeholder and a householder of another justice of the peace district from the one in which the suit was instituted, which contention was denied by the circuit court. The cause then proceeded to trial and the plaintiff's evidence as to the amount of his injury or damage was stated in conflicting terms. On direct examination the plaintiff was asked how much the mule was worth, and answered "two hundred and eighty-five dollars." He was asked the question as to how much the mule was worth after it was struck, and stated it was not worth thirty dollars, if he had to buy the mule. On cross-examination the appellee was asked, "How much is she worth now?" And replied. "one hundred and eighty-five dollars."

"Q. Didn't you say you paid two hundred and eighty-five dollars? A. I did; yes, sir.

"Q. What was she worth? A. Worth two hundred and eighty-five dollars.

"Q. How much is she worth now? A. I wouldn't give over thirty dollars. That crippling brought her down.

"Q. Then you were damaged the difference between thirty dollars and two hundred and eighty-five dollars? The mule was worth two hundred and eighty-five dollars? A. Yes, sir.

"Q. And you are damaged the difference between thirty dollars and two hundred eighty-five dollars? A. I claim one hundred dollars damages."

Appellee was also asked on recross-examination:

"Q. How much did you sue for in the justice of the peace court? A. Eighty-five dollars.

"Q. What was the actual damage? Eighty-five dollars.

"Q. You say you bought a mule as good as that for one hundred and eighty-five dollars? A. Better than that.

"Q. You bought this one during the war? A. Yes, sir.

"You claim eighty-five dollars damages? A. Yes, sir."

The court refused to dismiss the plaintiff's cause of action on this ground, which is assigned for error. There was a verdict for eighty-five dollars in the circuit court and judgment entered there for that amount, from which judgment there is a direct appeal by the plaintiff and a cross-appeal by the appellee asking for the ten per cent. statutory damages provided by law where on appeal from the judgment in the circuit court the judgment for an equal or greater amount is recovered by the plaintiff.

We think that, inasmuch as the appeal from the court of the justice of the peace to the circuit court was tried de novo, it was permissible for the plaintiff to amend his statement of the cause of action so as to show the amount claimed and that the court did not err in allowing the amendment to be made.

Section 2223, Hemingway's Code (section 2724, Code of 1906), fixes the venue of civil actions in the court of a justice of the peace. It reads as follows:

"The jurisdiction of every justice of the peace shall be coextensive with his county, and he may issue any process in matters within his jurisdiction, to be executed in any part of his county; but every freeholder or householder of the county shall be sued in the district in which he resides, if there be a justice acting therein and qualified to try the suit, or in the district in which the debt was contracted, the liability incurred, or in which the property may be found. And whenever, by reason of interest, relationship to one of the parties, or other like cause, any justice of the peace shall be disqualified to preside in any case before him, the same shall be transferred to a justice of the peace in that or an adjoining district free from such objection, in the county, who shall hear and determine the same."

The clause "or in the district in which the debt was contracted, the liability incurred, or in which the property may be found," used in the statute, makes an exception to the right of a freeholder to be sued in the district of his residence. The appellant insists that the word "liability" used in the statute in reference to jurisdiction has reference to rights of action springing from contract and that it does not apply to torts. The word "liability" is used in different senses in different statutes. We think it is intended to be used in its broad sense in the statute under consideration.

In 5 Words and Phrases, p. 4112, the word "liability" is defined as follows, among other definitions:

"``Liability' is defined by Black's Law Dictionary to be ``the state of being bound or obliged in law or justice to do, pay, or make good something; legal responsibility.' Webster defines it to be ``the state of being bound or obliged in law or justice; responsibility.' Bouvier defines it to be ``responsibility; the state of one who is bound in law and justice to do something which may be enforced by action.' Benge's Adm'r v. Bowling,106 Ky. 575, 51 S.W. 151."

"``Liability' has been defined as ``responsibility; the duty of one who is bound in law and justice to do something which may be enforced by action.' This liability may arise from contracts, express or implied, or in consequence of torts committed.Piller v. Southern Pac. R. Co., 52 Cal. 42, 44."

In 5 Words and Phrases, p. 4111, are found the following definitions:

"``Liability,' as defined in Abb. Law Dist. 38, means ``amenability or responsibility to law; the condition of one who is subject to a charge of duty which may be judicially enforced.'Wood v. Currey, 57 Cal. 208, 209."

"``Liability,' as a legal term, signifies that condition of affairs which gives rise to an obligation to do a particular thing to be enforced by action; as we say an executor is liable for the debts of his testator, or a principal is liable for the acts of his agent. Haywood v. Shreve, 44 N.J. Law (15 Vroom) 94, 104."

"``Liability' is responsibility; the state of one who is bound in law and justice to do something which may be enforced by action. This liability may arise from contracts, either express or implied, or in consequence of torts committed.' Bouv. Law Dict. The term is broader than the term ``debt.' McElfresh v.Kirkendall, 36 Iowa, 224, 226; Lattin v. Gillette, 95 Cal. 317, 30 P. 545, 546, 29 Am. St. Rep. 115; Benge's Adm'r v.Bowling, 106 Ky. 575, 51 S.W. 151."

"Giving the words "obligation and liabilities' their full force and effect in Gen. St. 1889, par. 1268, providing that any two or more railroad companies may consolidate and form one company, subject to all the obligations and liabilities to the state which belonged to or rested upon either of the companies making such consolidation, ``obligations' may be construed as embracing all pecuniary duties in the way of being answerable for debts, demands etc. ``Liabilities' may mean the burdens imposed by the Constitution and the statutes; that is, the responsibility or bounden duty to the state under the Constitution and statutes. If obligations to the state only were intended by both terms, it would not have been necessary to have added the words ``liabilities to the state,' because ``liabilities, is defined as the state of being liable, as the liability of an insurer, liability to the law, responsibility, accountability, bounden duty. To hold that ``obligations and liabilities' was limited to the state only would be to say that the legislature was guilty of a repetition of the same meaning in different words. Berry v.Kansas City, Ft. S. M.R. Co., 52 Kan. 759, 34 P. 805, 808, 39 Am. St. Rep. 371."

We think these definitions are appropriate to the word "liability" as used in section 2223, Hemingway's Code (section 2724, Code of 1906), and that the defendant could rightfully be sued in the district where the injury was committed. It is unnecessary to deal with the question whether the defendant waived his privilege of claiming the venue in the justice court.

We do not think the point well taken that the suit was brought into the justice court for the purpose of defrauding the circuit court of its jurisdiction. While it is true that the plaintiff's evidence in the circuit court is conflicting and some parts of his evidence carry the idea that the mule was injured in a greater amount than two hundred dollars, yet taking his evidence as a whole and considering it in the light of a finished trial in which the justice of the peace found the value to be eighty-five dollars, and the jury of the county on appeal also found the mule to be worth eighty-five dollars, coupled with the fact that the claim as amended in the circuit court was for eighty-five dollars, which is nothing near the statutory limit of the justice's jurisdiction of two hundred dollars, there was no purpose to defraud the circuit court of its jurisdiction, or to deliberately undervalue. the property for the purpose of obtaining jurisdiction in the justice court.

We think the verdict is sustained by the evidence. It is true that there was a conflict between the version of the plaintiff and that of the defendant as to how the injury occurred. But the plaintiff's evidence was found to be true and we do not feel authorized to disturb the jury's finding as it is supported by the evidence. We do not think there was error committed in giving the instructions complained of.

On cross-appeal we think the contention of the appellee is correct. There was a verdict for eighty-five dollars in the justice court and a verdict for the same amount in the circuit court, and the statute allows damages in the sum of ten per cent. of the amount recovered in the court below in such cases.

The judgment of the court below will be affirmed on direct appeal and reversed, and judgment here for appellee, adding ten per cent. damages, which should have been allowed by the circuit court.

Affirmed on direct appeal; reversed and judgment here on cross-appeal.

Affirmed. Reversed.