Bell v. City of Bay St. Louis

• Decision Date: 10 April 1985
• Docket Number: No. 54614,54614
• Citation: 467 So.2d 657
• Parties: Henrietta W. BELL v. CITY OF BAY ST. LOUIS, Mississippi.
• Court: Mississippi Supreme Court

Page 657

467 So.2d 657

Henrietta W. BELL v. CITY OF BAY ST. LOUIS, Mississippi.

No. 54614.

Supreme Court of Mississippi.

April 10, 1985.

Wynn E. Clark, Roberts & Clark, John G. Clark, Pascagoula, for appellant.

Joseph W. Gex, Gex, Gex & Phillips, Bay St. Louis, for appellee.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This slip and fall case presents questions regarding default judgments and jury selection which have less than ordinary factual twists. The trial judge successfully traversed these obstacles, only to slip and fall on one of the most established points in our law.

We hold that the Circuit Court of Hancock County acted within its discretion when it thwarted Plaintiff's repeated efforts to secure a judgment by default--although in candor the defendant City of Bay St. Louis was seriously dilatory in filing its answer. We further hold that the trial judge correctly rejected Plaintiff's challenge for cause for all prospective jurors who resided in Bay St. Louis made on grounds that as taxpayers, those jurors would have to pay any judgment rendered against the City.

On the other hand, the trial judge--no doubt in a moment of inattention or inadvertence--granted, at the City's request, a jury instruction that unequivocally advises the jury that contributory negligence on the part of Plaintiff--and there likely was some on the facts of this case--would bar recovery even though the City be found negligent. Because this instruction is contrary to our law of comparative negligence, the judgment below for the Defendant City must be reversed and the case remanded for a new trial.

II.

On December 1, 1978, Henrietta W. Bell, Plaintiff below and Appellant here, went to the City Hall in Bay St. Louis, Mississippi, to pay her water bill. Upon leaving, she slipped and fell on the sidewalk maintained by the City and broke her legs. According to Bell, she had lost her footing when she stepped on some grass and debris that had been left on the sidewalk by City maintenance personnel. According to the City, there was no grass or debris on the sidewalk and certainly none that was left by its maintenance personnel.

On January 25, 1980, Bell commenced this action by filing her declaration in the Circuit Court of Hancock County, Mississippi, naming the City of Bay St. Louis as the sole Defendant. Bell charged the City with negligent maintenance of its public sidewalk. After considerable pretrial proceedings, some of which are discussed below, this case was called for trial on its merits on January 11, 1982, and resulted in a jury verdict for the City.

On January 14, 1982, the Circuit Court entered final judgment in favor of the City of Bay St. Louis and against Henrietta W. Bell. Bell thereafter filed her alternative motions for judgment notwithstanding the verdict and for a new trial, both of which were overruled on January 29, 1982. This appeal has followed.

III.

We begin with the proposition that the City of Bay St. Louis had a non-delegable duty to maintain its sidewalks and other public ways in a reasonably safe condition. The City may be held liable if through its neglect an unreasonably unsafe condition is allowed there to exist and damage or injury approximately results. City of Laurel v. Upton, 253 Miss. 380, 395, 175 So.2d 621, 626 (1965); see also, Walker v. Laurel Urban Renewal Agency, 383 So.2d 149, 150 fn. 1 (Miss.1980); and Bush v. City of Laurel, 215 So.2d 256, 257 (Miss.1968).

It is against the backdrop of this rule that Plaintiff Bell first assigns as error the refusal of the trial judge to grant, on the liability issue only, a peremptory instruction in her favor or, in the alternative, her motion for judgment notwithstanding the verdict of the jury.

Without getting into the process of weighing the evidence in the record and second-guessing the jury, let it simply be observed that there is sufficient testimony in the record by City employees that--if believed by the jury--could undergird a jury's finding that the City was not negligent.

We take such issues from the jury only where, under our familiar test, the facts are so clear that reasonable minds could not differ. See, e.g., City of Jackson v. Locklar, 431 So.2d 475, 478-79 (Miss.1983) (standard for removing issues from jury); Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 656-57 (Miss.1975) (same); General Tire & Rubber Co. v. Darnell, 221 So.2d 104, 105-07 (Miss.1969) (same).

Strong v. Freeman Truck Line, Inc., 456 So.2d 698, 708 (Miss.1984).

Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found. Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984); Weems v. American Security Insurance Co., 450 So.2d 431, 435 (Miss.1984). When we apply this standard to the evidence before us, we may only state that the trial judge correctly denied Bell's request for a peremptory instruction as well as her subsequent motion for judgment notwithstanding the verdict.

Bell's motion for a new trial was addressed to the sound discretion of the trial court. It may be granted only if the trial judge in the exercise of his sound discretion is of the opinion that the verdict is contrary to law or the weight of the evidence. Having due regard for the evidence in the case, we hold that the trial judge acted well within his discretion when he denied Bell's alternative motion for a new trial.

IV.

Bell assigns as error the refusal of the Circuit Court to grant her motion for a default judgment. The record reflects that process was effectively served upon the City of Bay St. Louis on February 5, 1980. On July 31, 1980 Bell moved for default judgment and a writ of inquiry, citing the fact that the City had had almost six months from the date of service of process within which to respond and that the City in fact had done nothing. ¹ The record reflects that a copy of the motion for a default judgment was served upon the City on July 31, 1980. On August 1, 1980, with the City apparently having continued to say naught, Circuit Judge Kosta N. Vlahos entered an order overruling and denying the motion, noting his concern as to whether he had the authority to render a default judgment against an incorporated municipality.

The City of Bay St. Louis did not file an answer until January 29, 1981. The record reflects that the City was equally dilatory in responding to plaintiff's discovery. In any event, on July 6, 1981 plaintiff filed a motion to strike answer and for entry of default judgment setting forth two grounds: the City's eleven-month delay in filing an answer and the City's refusal to respond to discovery. To be sure, striking a party's pleadings and entry of judgment by default was at the time the extreme sanction authorized for failure to make discovery. Miss.Code Ann. Sec. 13-1-237(b)(2)(C) (Supp.1981). However, on October 21, 1981, Circuit Judge J. Ruble Griffin entered an order imposing a less severe sanction, to-wit: the granting of plaintiff's motion to compel discovery and the assessment of costs and fees for the City's dilatory practice in that regard, but overruling and denying plaintiff's motion to strike answer and for entry of default judgment.

On January 11, 1982 plaintiff Bell renewed her motion to strike answer and for entry of default judgment citing the same grounds as before. On January 11, 1982 Circuit Judge Leslie B. Grant entered an order overruling and denying this motion.

This action was brought prior to the advent of the Mississippi Rules of Civil Procedure on January 1, 1982. ² Motions for default judgment were at the time governed by Miss.Code Ann. Sec. 11-7-121 (1972) which contains the permissive language that "judgment may be entered." The granting or denying of a motion for default judgment has thus been regarded as committed to the sound discretion of the trial court. Ross v. Federal Deposit Insurance Corp., 261 So.2d 471, 474 (Miss.1972); Campbell v. Campbell, 231 Miss. 658, 661-662, 97 So.2d 527, 528-529 (1957). This has never meant that the trial judge could do anything he or she wished. Sound discretion imports a decision by reference to legally valid standards. Where a trial judge in determining a matter committed to his sound discretion makes his decision by reference to an erroneous view of the law, this Court has authority to take appropriate corrective action on appeal. See City of Meridian v. Trussell, 52 Miss. 711, 713 (1876).

In the case at bar, the order of August 1, 1980 denying Bell's first motion for default judgment suggests that the trial judge was of the opinion that he had no authority to enter a default judgment against an incorporated municipality. This view of the law is incorrect. Town of Jonestown v. Ganong, 97 Miss. 67, 83, 52 So. 579, 581 (1910); City of Meridian v. Trussell, 52 Miss. 711 (1876). As a party to a civil action, an incorporated municipality is treated the same as any other litigant and is vested with the same rights and responsibilities, no more, no less. Indeed, counsel for the City conceded the point at oral argument. Under the law in effect at the time in question, the disposition of Bell's motion for a default judgment should have been made the same as would have been done had the Defendant been a private party.

On the other hand there are countervailing and equally valid standards, beginning with the one mentioned above to the effect that the default judgment procedure then in effect was not mandatory. Further, it is the policy of our system of judicial administration to favor disposition of cases on their merits. Manning v. Lovett, 228 Miss. 191, 195, 87 So.2d 494, 496 (1956); Southwestern Security Insurance Company v. Treadway, 113 Miss. 189, 197, 74...