Opinion
(Filed 22 May, 1906.)
Justices of the Peace — Jurisdiction — Torts — Remitting Excess — Contributory Negligence — Pleadings — Issues.
1. Courts of justices of the peace have jurisdiction to hear and determine actions for injury to personal property and to render judgments thereon, not exceeding $50, and the jurisdiction is not determined by the value of the property injured, but by the amount demanded in the warrant or complaint.
2. Where in an action for a tort brought before a justice of the peace, the plaintiff demanded $50 damages and the justice rendered judgment for that sum and on appeal the jury assessed the damages at more than $50, the plaintiff could remit the excess and take judgment for the sum demanded.
3. Where the answer failed to set out the acts and defaults of the plaintiff constituting contributory negligence, the judge did not err in not submitting an issue as to contributory negligence.
ACTION by S. J. Watson against J. O. Farmer, heard on appeal from a justice of the peace by Cooke, J., and a jury, at October Term, 1905, of WILSON.
Pou Finch for plaintiff.
Aycock Daniels and J. A. Farmer for defendant.
The issues submitted were:
1. Was the plaintiff's mule injured by the negligence of the defendant's driver? Yes.
(453) 2. What damage did the plaintiff sustain? $55.
Thereupon the plaintiff remitted the excess and the court rendered judgment for $50. Defendant appealed.
It is contended by the defendant that the justice of the peace had no jurisdiction of the cause of action set out in the complaint, and that the judge erred in not submitting an issue as to contributory negligence.
1. The jurisdiction of the courts of justices of the peace to hear and determine actions for injury to personal property and to render judgments therein, not exceeding $50, is upheld by this Court in Malloy v. Fayetteville, 122 N.C. 480, in an opinion by the present Chief Justice, in which all the authorities are collected. We are not disposed to question that decision, but, on the contrary, regard the question as settled by it. The jurisdiction of the justices is not to be measured by the value of the personal property injured. It is to be determined by the amount demanded in the warrant or complaint. It is true, there are cases like this where the actual damage sustained exceeds $50, but we see no reason why the plaintiff should not lay his damage at $50. He cannot recover in tort any more than he demands, and having recovered that in one action, he is debarred from any further recovery on the same cause of action. Eller v. R. R., 140 N.C. 140. His Honor should have directed the jury to limit their assessment of the damages to $50, the sum demanded. As his Honor did not do so, and the jury rendered a verdict for $55, we see no good reason why the plaintiff should not be permitted to remit the excess and take his judgment for the sum within the justice's jurisdiction, and which was all the plaintiff sued for. The justice himself fixed the damage at $50 and rendered judgment for that sum, it being within his jurisdiction. Because a jury inadvertently assessed the damage at $5 more than the plaintiff demanded is no reason for ousting the justice's (454) jurisdiction when the plaintiff is willing to remit the excess. The question is decided in Noville v. Dew, 94 N.C. 43, in accord with the plaintiff's contention.
2. In this case the pleadings are in writing. The answer fails to set out the acts and defaults of the plaintiff or his servant constituting contributory negligence, and is therefore insufficient to raise the issue. 5 Enc. Pl. and Pr., 12. Also, there seems to be an absence in the record of any evidence of contributory negligence.
Affirmed.