Opinion
No. 38874.
October 19, 1953.
1. Pleadings — statute of jeofails — verdicts — declaration stating no cause of action.
All defects which arise from an imperfectly stated cause of action are cured after verdict; but, if the declaration states no cause of action whatever, a verdict does not cure such defects. Sec. 1544, Code 1942.
2. Pleading — declaration — necessary charges in action for negligence.
To maintain an action for negligence, the declaration must charge that the defendant was under a duty to use care, that he failed to do so, and that the plaintiff was injured as the proximate result thereof.
3. Negligence — pleading — declaration failed to state cause of action.
In suit by passenger in taxicab against owner of vehicle for personal injuries sustained on account of alleged negligence of driver, wherein declaration failed to charge that alleged owner was operator of taxicab at time of accident, that alleged driver of taxicab was owner's agent, that owner was under any duty to passenger, or that owner was in any way responsible for injury, was insufficient to state a cause of action.
Headnotes as approved by Lee, J.
APPEAL from circuit court of Hinds County; M.M. McGOWAN, Judge.
Jackson Ross, Jackson, for appellant.
I. The declaration does not allege a cause of action against the appellant, Monroe Wilson, and judgment by default thereon is void.
II. The statute of jeofails does not cure a judgment entered by default on a declaration which wholly fails to state a cause of action.
Ades v. Brush, 66 Cal.App.2d 346, 152 P.2d 519; American National Ins. Co. of Galveston, Texas v. Golden, 133 Miss. 282, 97 So. 580; Broadstreet v. City of Jackson, 81 Miss. 233, 32 So. 999; Carrier Lbr. Mfg. Co. v. Quitman County, 156 Miss. 396, 124 So. 437, 66 A.L.R. 614; City of Indianapolis v. Evans, 216 Ind. 555, 24 N.E.2d 776; Elder v. Rutledge, 217 Ind. 459, 27 N.E.2d 358; Gallowitch v. Ellis, 55 Ga. App. 780, 191 S.E. 384; George County Bridge Co. v. Catlett, 161 Miss. 120, 135 So. 217; Gibson v. W.C. Wood Lbr. Co., 91 Miss. 702, 45 So. 834; Gilbert v. Louis Pizitz Dry Goods Co., 237 Ala. 249, 186 So. 179; Hamer, et al. v. Rigby, 65 Miss. 41, 3 So. 137; Harri v. Isaac, 111 Mont. 152, 107 P.2d 137; Harrington v. Central State Fire Ins. Co. of Wichita, Kansas, (Okla.), 36 P.2d 738, 96 A.L.R. 859; Haynes v. Ezell, 25 Miss. 242; Howard v. Reinhart Donovan Co., 196 Okla. 506, 166 P.2d 101; Jackson v. Penn. R. Co., 176 Md. 1, 3 A.2d 719, 120 A.L.R. 1060; Lasko v. Meier, et al., 394 Ill. 71, 67 N.E.2d 162; Lindsey v. Keenan, Andrews Allred, (Mont.), 165 P.2d 804, 163 A.L.R. 487; Littlejohn v. Alabama Power Co., 243 Ala. 492, 10 So. 757; McAndrews v. Chicago, L.S. E. Ry. Co., 222 Ill. 232, 78 N.E. 603; Mosley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305; Mutual Benefit Health Accident Ass'n v. Crowder, 201 Miss. 92, 28 So.2d 654; National Loan Exchange Bank v. Lachonitz, (S.C.), 128 S.E. 10, 39 A.L.R. 1237; Neuber v. Royalty Realty Co., 86 Cal.App.2d 596, 195 P.2d 501; Nichols v. Nichols, 197 Miss. 302, 20 So.2d 72; Odom v. Gulf Ship Island R. Co., 101 Miss. 642, 57 So. 626; Oliver Bus Lines, Inc. v. Smith, (Miss.), 164 So. 43; Ouellette v. Miller, 134 Me. 162, 183 A. 341; Paine v. Mikell, 187 Miss. 125, 192 So. 15; Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 93 So. 673; Penn. Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736; Ragsdale v. Caldwell, 2 How. 930; Ramsey v. Tuthill Bldg. Material Co., 295 Ill. 395, 129 N.E. 127, 36 A.L.R. 23; Reynolds v. W.H. Hinman Co., (Me.), 75 A.2d 202, 20 A.L.R. 1360; Ried v. Gregory, 78 Miss. 247, 28 So. 824; Sessions v. Foster, 123 Me. 466, 123 A. 898, 899; Smith v. Frank Gardner Hardware Supply Co., 83 Miss. 654, 36 So. 9; Spake v. Pearlman, 21 S.E.2d 881, 222 N.E. 62; Stevens, et al. v. Barbour, et al., 193 Miss. 109, 8 So.2d 242; Taylor, et al. v. Twiner, et al., 193 Miss. 910, 9 So.2d 644; Wells v. Woodley, 5 How. 484; Willey v. Maine Cent. R. Co., 137 Me. 223, 18 A.2d 316, certiorari denied 52 S.Ct. 85, 314 U.S. 612, 86 L.Ed. 492; Windram Manufacturing Co. v. Boston Blacking Co., (Mass.), 131 N.E. 454, 17 A.L.R. 669; Anderson v. Daniel, 136 Miss. 456, 101 So. 498; Bates v. City of McComb, et al., 181 Miss. 336, 179 So. 737; Hastings-Stout Co. v. J.L. Walker Co., 162 Miss. 275, 139 So. 622; Hercules Powder Co. v. Williamson, 145 Miss. 172, 110 So. 244; Johnson v. Bruce, et al., 177 Miss. 581, 171 So. 685; Jones v. Milsaps, et al., 71 Miss. 10, 14 So. 440; Kehlor Flour Mills Co. v. Reeves Grocery Co., 112 Miss. 30, 73 So. 86; Noble v. Terrell, et al., 64 Miss. 830, 2 So. 14; Paine v. Newton, 186 Miss. 844, 192 So. 310; Robertshaw Trustees, et al. v. Columbus G. Railway Co., 185 Miss. 717, 188 So. 308; Sansing v. Thomas, 211 Miss. 927, 52 So.2d 478; The Troy Socony, 18 F.2d 629; 31 Am. Jur. 130, Judgments, Sec. 515; 38 Am. Jur. 948, 949, 950, 951, 955, Negligence, Secs. 258, 259, 260, 261, 264; 41 Am. Jur. 329, 334, Pleading, Secs. 58, 59, 63; 64 C.J.S. 869, Negligence, Sec. 183; 65 C.J.S. 871, 879, 890, 903, 906, Negligence, Secs. 185, 187, 188, 189; 71 C.J.S. 140, 226, 1183, Pleading, Secs. 55, 91, 597; Sec. 1475.5, Code 1942; Prosser on Torts, p. 175.
Russell Little, Magee, and Stennett Stennett, Jackson, for appellee.
I. The declaration as amended sufficiently states a cause of action against appellant, Monroe Wilson, to support a judgment by default.
II. Any defects, irregularities or imperfections appearing on the face of the amended declaration are cured by our statute of jeofails.
III. There was no motion filed in the trial court to set the judgment aside, and this appellate court will not put the trial court in error when it has not had an opportunity to correct its error.
People v. Gravnehorst, 32 N.Y.S.2d 760; Jennings v. State Industrial Accident Comm., 227 P.2d 829; Day Time-Register Co. v. W.H. Bundy Recording Co., 169 F. 807; Thomas v. State, 244 P. 816; Weathers v. Williams, Sheriff, 182 So. 764; Eccles v. Stone, Sheriff, 183 So. 628; Ventress, et al. v. Wallace, 111 Miss. 357, 71 So. 636; American National Ins. Co. of Galveston, Texas v. Golden, 188 Miss. 282, 97 So. 580; Oliver Bus Lines, Inc. v. Smith, 164 So. 43; Ragsdale v. Caldwell, 2 How. 930; Wells v. Woodley, 5 How. 484; Jones v. Millsaps, et al., 71 Miss. 10, 14 So. 440; Hastings-Stout Co. v. J.L. Walker Co., 162 Miss. 275, 139 So. 622; Johnson v. Bruce, et al., 177 Miss. 581, 171 So. 685; Bates v. City of McComb, et al., 181 Miss. 336, 179 So. 737; Kehlor Flour Mills Co. v. Reeves Grocery Co., 113 Miss. 30, 73 So. 866; Anderson v. Daniel, 136 Miss. 456, 101 So. 498; Haves Produce Co. v. Taylor, 213 Miss. 217, 56 So.2d 503; Noble v. Terrell, et al., 64 Miss. 830, 2 So. 14; Hercules Powder Co. v. Williamson, 145 Miss. 172, 110 So. 244; Strain v. Gayden, 197 Miss. 353, 20 So.2d 697; McIntosh v. Munson Road Machinery Co., et al., 167 Miss. 546, 145 So. 734; Robertshaw Trustees, et al. v. Columbus G. Ry. Co., 185 Miss. 717, 188 So. 308; Sansing v. Thomas, 211 Miss. 927, 52 So.2d 478; Newell Contracting Co. v. Flynt, 172 Miss. 717, 161 So. 743; Secs. 1464, 1544, Code 1942; The New Century Dictionary, word "adapt"; 1 C.J.S. 1452.
Orena Terry filed suit in the circuit court against J.M. Majors, doing business as Majors Cab Company, to recover damages for a personal injury. Her declaration charged that she was a passenger for hire in a taxicab, No. 138, owned by Majors and driven by his agent Joe Lee Friley, who was then acting within the scope of his authority and about his master's business; and that, on account of the negligence of the driver, she suffered the loss of an index finger, together with other damages.
Majors' answer denied that there was any liability on him. He averred that he neither owned nor operated the taxicab in question, and that Joe Lee Friley was not his employee. He suggested however that a taxicab was being operated about the time in question by Monroe Wilson, under the trade name of Majors Cab Company, and that Joe Lee Friley was the driver thereof.
Thereupon plaintiff filed a motion in which she stated that "according to the said answer of Majors, the cab which was involved in said alleged wreck or accident was not owned by the said J.M. Majors, but was owned and leased by other parties," and asked leave to amend the original declaration so as to incorporate necessary and proper parties as defendants. The motion was sustained. Thereafter the amended declaration charged that, upon information obtained from Majors' answer, "plaintiff finds that said necessary and proper parties was the owner or lessor of the automobile described in said original declaration which was involved in said cause of action." Carl Brooks, Jr., and Monroe Wilson were then merely named as defendants. Following this, it was said, "and for cause of action, (she) adapts this her amended or supplemental declaration and original declaration, as testimony thereof." Judgment was then demanded against Majors, Wilson and Brooks. Majors' answer was not made a part of the amended declaration.
When Wilson did not answer, after proper process, judgment by default was rendered against him at the return term; and, proceeding under a writ of inquiry, the amount of damages was fixed at $4,000.00, and judgment thereon was rendered. Within the time provided by law Wilson appealed.
The question for decision is whether or not the original and amended declarations stated a cause of action against the appellant.
Now, if the declaration "contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient * * *." Section 1464, Code 1942.
(Hn 1) The rule seems to be well established in our jurisprudence that, by reason of the statute of jeofails, Section 1544, Code 1942, all defects which arise from an imperfectly stated cause of action are cured after verdict; but, if the declaration states no cause of action whatever, a verdict does not cure such defect. Wells v. Woodley, 5 How. 484; Reid v. Gregory, 78 Miss. 247, 28 So. 834; Penn Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736; American National Insurance Co. v. Golden, 133 Miss. 282, 97 So. 580; Oliver Bus Lines, Inc. v. Mrs. Eva Ruth Smith, 164 So. 43; Stevens, et al. v. Barbour, et al., 193 Miss. 109, 8 So.2d 242; Mutual Benefit Health Accident Assn. v. Crowder, 201 Miss. 92, 28 So.2d 654.
It seems to be generally recognized that, (Hn 2) to maintain an action for negligence, the declaration must charge that the defendant was under a duty to use care; that he failed to do so; and that the plaintiff was injured as the proximate result thereof. In other words, "negligence proceeds from a failure to perform a duty owing by the negligent to the injured." Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; Campbell v. Willard, 205 Miss. 783, 49 So.2d 483; Prosser on Torts, page 175; 38 Am. Jur., Negligence, Sections 258-9, pp. 948-9; 65 C.J.S., Negligence, Section 185, p. 871.
If the declaration in fact charged that Wilson was the owner or lessor, it failed to charge that he was the operator, or that Joe Lee Friley was his agent, or that Wilson was under any duty to the plaintiff, or that he was in any way responsible for the injury. Wilson was under no obligation to hunt up information that might perhaps make out a case against him. He was bound to take notice only of the allegations, if any, against him in the original and amended declarations. If he did that, he could not have found a charge that he was under a duty to use care toward the plaintiff or that he failed to do so or that she was injured as a proximate result thereof.
In an effort to show that the declaration was so remodeled as to state a cause of action against Wilson, much is said by the appellee of the use, in the amended declaration, of the word adapt rather than adopt. But the trouble is that no amount of mere adapting could have effected that purpose. This is not a case "where the cause of action was merely defectively stated" as was said in Oliver Bus Lines v. Mrs. Eva Ruth Smith, supra. (Hn 3) It is a case where no cause of action whatever was stated. While the plaintiff sued and demanded judgment against Wilson, she stated no facts which would entitle her to recover from him the amount demanded, or any part thereof.
It follows that this cause should be, and is, reversed and remanded.
Reversed and remanded.
McGehee, C.J., and Roberds, Holmes and Ethridge, JJ., concur.