City of Jackson v. Richard

• Citation: 186 So. 657,185 Miss. 136
• Decision Date: 27 February 1939
• Docket Number: 33606.
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. RICHARD et al.

186 So. 657

185 Miss. 136

CITY OF JACKSON v. RICHARD et al.

No. 33606.

Supreme Court of Mississippi, Division A.

February 27, 1939

Appeal from Circuit Court, Hinds County; J. P. Alexander, Judge.

Action by the City of Jackson against S. S. Richard and another to recover damages and costs which plaintiff was required to pay in settlement of a judgment rendered against it. From a judgment entered on a directed verdict for defendants plaintiff appeals.

Reversed and remanded.

W. E Morse, of Jackson, for appellant.

Robertson & Robertson, of Jackson, for appellees.

McGEHEE, Justice.

The City of Jackson brought this suit against the appellees, S S. Richard, a plumbing contractor, and the United States Fidelity & Guaranty Company, surety on his bond as a master plumber, for damages and costs in the sum of $351 which the city had been required to pay in settlement of a judgment theretofore rendered in favor of W. L. Maxwell on account of a personal injury sustained while driving his automobile across a ditch or hole in the street caused by the concrete pavement giving way immediately over a tunnel dug thereunder some months previously by the said Richard. There was a directed verdict in favor of the appellees herein and the city prosecutes this appeal.

In the former suit Maxwell sought recovery of damages for his injury against both Richard and the city. Richard demurred on the ground that the declaration did not allege facts sufficient to show that he had been guilty of negligence in the matter of refilling the excavation made by him underneath the street where the accident occurred. The demurrer was sustained, and Maxwell having failed to plead further as to Richard, the case was dismissed or discontinued as to him and prosecuted to final judgment against the city. When the present suit came on for trial Richard interposed a plea of res adjudicate on two grounds: (1) That a general demurrer had been sustained in the former suit as to his alleged liability, and on which action of the court a final judgment had been rendered in his favor, and (2) because in that suit the city had obtained an instruction that if the jury believed that the injury of the plaintiff Maxwell was sustained solely on account of the negligence of Richard in failing to properly refill the excavation under the street they must find in favor of the city; and that hence the verdict rendered against the city amounted to a finding...