City of Lumberton v. Schrader

Decision Date18 May 1936
Docket Number32259
CourtMississippi Supreme Court
PartiesCITY OF LUMBERTON v. SCHRADER et awl

Division B

Suggestion Of Error Overruled September 28, 1936.

APPEAL from circuit court of Lamar county HON. HARVEY MCGEHEE Judge.

Action by J. F. Schrader and others against the City of Lumberton. Judgment for plaintiffs, and defendant appeals, and plaintiffs cross-appeal. Affirmed.

Affirmed.

Davis & Davis, of Purvis, and John A. Yeager, of Lumberton, for appellant.

We most earnestly insist that the statutes select and designate a state system of primary highways and place them under the full jurisdiction, supervision and control of the state highway commission. That the Jackson highway, or U. S highway No. 11, runs through the city of Lumberton, in Lamar county, and in its route through the city, it occupies Third street as a link in said state primary highway. That the Legislature by express statute had selected and designated the said highway as a state primary highway and placed it under the direct supervision and control of the state highway commission with full jurisdiction over the same and that the said statutes and the action of the state highway commission in taking the actual possession, control and jurisdiction of the said highway, divested the city of Lumberton of its jurisdiction, supervision, power and control over said street used as a part of said highway in its route through the city of Lumberton.

Section 170, Amendment, Constitution of the State; Chapter 278, Laws of 1924; Chapter 218, Laws of 1926; Chapter 45, Extraordinary Session of the Legislature of 1928; Chapter 47, Laws of 1930; Chapter 222, sections 4996, 5021, 6360, Code of 1930; Chapter 396, Laws of 1934; Chapter 82, Laws of 1928.

In Mississippi the Legislature has plenary power over the streets of municipalities. It has power to divest the municipalities of all control over their streets. It is a question of legislative will and intent and not a question of power.

City of Meridian v. Telegraph Co., 72 Miss. 912, 18 So. 84; Dillon Mun. Corp., pars. 689, 683, 701; Smith Mun. Corp., par. 1309; Village of Ridgeland v. Madison County, 122 So. 753.

Chapter 32, Extraordinary Session of the Legislature of 1935, by implication, repeals section 2414, Mississippi Code of 1930, insofar as that section gives municipalities exclusive jurisdiction and control over their streets and sidewalks. It relieves and absolves the municipality from liability for negligence in the maintenance or repair of the streets made a part of the state primary highway system. While the statute is not a direct repeal of any part of Section 2407, it does by necessary implication repeal the statute to the extent stated. It divests the municipality of the full jurisdiction and control of all streets in the municipality used as a part of the state primary highway system and confers upon the state highway department jurisdiction and control over such highways. There is no such saving clause in the act and being a repeal statute, it should be given a retroactive construction, and, if given this construction, it abrogates the liability of the municipality, if any, for negligence in the maintenance or repair of that part of the streets of the municipality constituting a part of the state primary highway system, including the claim of appellees for damages for the injuries sustained by their intestate.

The general rule against the retrospective construction of statutes does not apply to repealing acts, and, in the absence of a saving clause or other clear expression of intention, the repeal of a statute has the effect, except as to transactions passed and closed, blotting it out as completely as if it had never existed, and of putting an end to all proceedings under it.

59 C. J. 1185, par. 722; 59 C. J. 1188, par. 725; Crow v. Cartledge, 99 Miss. 281, 54 So. 947.

There is no allegation in appellees' declaration that the alleged injury in this case arose out of any contract relation, and there being no contract relation there is no vested interest.

12 C. J. 947, par. 551; Carson v. Gore-Meenan Co., 229 F. 765.

The measure of the duty of a municipality in the maintenance of its streets is to, use ordinary care to keep them in a reasonably safe condition for persons using ordinary care and prudence.

Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 474; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; McComb City v. Hayman, 124 Miss. 525, 87 So. 11.

We submit that appellees' evidence taken as a whole shows that the street at the time and place in question was in a reasonably safe condition for use by parties using ordinary care for their own safety, and that the motion of appellant for a directed verdict should have been sustained.

The burden of proof was upon appellee to show by preponderating evidence that the appellant was guilty of "real wrongful or negligent act, or omission" and that this was the proximate cause, or at least a directly contributing cause, of Mrs. Schrader's death.

Berryhill v. Nichols, 158 So. 470.

A municipality does not establish and maintain its streets for profit nor does it assess or collect any dues, except for the upkeep and maintenance of its streets in reasonably safe condition, so, that persons using ordinary care may safely traverse them.

Dow v. Town of D'Lo, 152 So. 474, 169 Miss. 240.

So the maintenance of the streets by a municipality partakes more of a governmental function than of a proprietary capacity and for this reason the degree of legal responsibility is greatly minimized.

Rome v. London, etc., Co. of America, 157 So. 175, 160 So. 121; City of Greenville v. Laury, 159 So. 121.

There is vested right in accrued cause of action springing from contract.

Harris v. United States, 5 F.Supp. 368; 50 U.S.C. A., Appendix, par. 24; Woodson v. Deutsche Gold and Silber Scheideanstalt Vormals Roessler, 54 S.Ct. 804, 292 U.S. 449, 78 L.Ed. 1357, 68 F.2d 391, 62 App. D. C. 344, 54 S.Ct. 562, 291 U.S. 657, 78 L.Ed. 1049; Hazzard v. Alexander, 173 A. 517.

There can be no vested right in claim for damages for statutory tort, not connected with contractual relation until judgment is rendered, since, prior to judgment claim is mere expectancy or inchoate right, not assignable nor liable to attachment, and not debt, but rule that vested right of action is property protected from arbitrary legislation applies to rights of action springing from contract or common law.

Hazzard v. Alexander, 173 A. 517; C. J. Annual Annotations 1935, p. 591, par. 551.

When all of the evidence is taken into consideration, the amount of damages awarded by the jury cannot be said to be grossly inadequate.

Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Belzoni Hardwood Lbr. Co. v. Langford, 89 So. 919.

J. M. Morse, of Poplarville, and Roy Bridges, of Purvis, for appellees.

We submit to the court that it makes no difference whether the highway department was given the control over the street in question by the Legislature or the city council that this inx nowise affects the law. That it is the duty of the city to keep the streets, alleys, and sidewalks, including its gutters and storm sewers, in a reasonably safe condition for the traveling public.

Town of Senatobia v. Dean, 137 Miss. 207, 127 So. 773.

This cause of action in the heirs at law of Mrs. Schrader became vested in them on her death in July, 1935, and if the statute which in nowise repeals sections 2407 or 2414, of Mississippi Code of 1930, has no retroactive clause, could not effect their rights, the statute becoming a law in October, 1935.

25 R. C. L., Statutes, pars. 34-35, 36-37, pp. 786, 787, 788, 789; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; State ex rel. v. Cloud, 146 Miss. 642, 112 So. 19; McCreight v. Scales, 134 Miss. 303, 99 So. 257.

Statutes will always be given prospective operation if possible.

State ex rel. v. Tank Cor. Co., 151 Miss. 797, 119 So. 311; State ex rel. v. Grocery Co., 156 Miss. 99, 125 So. 710; Bell v. Bank, 130 So. 486; R. R. Co. v. Hattiesburg, 163 Miss. 311, 141 So. 897.

The concrete blocks or slabs were a stumbling block and known to all to be dangerous. Mrs. Schrader forgot their presence.

A mere failure to remember a known defect in a way or temporary forgetfulness which results in an injury, does not necessarily constitute contributory negligence.

McQuillin Municipal Corp. (2 Ed.), par. 3015; Natchez v. Lewis, 90 Miss. 310, 43 So. 471; Birdsong v. Mendenhall, 97 Miss. 544, 52 So. 795; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 184; Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547.

These great slabs or blocks of irregular concrete which apparently were pieces of a defective curb, were permitted to stay in this approach to the post office simply because the state highway department used a part of the Street for the federal highway.

Senatobia v. Dean, 157 Miss. 207, 127 So. 773; Tishoraingo County v. McConville, 139 Miss. 589, 104 So. 452; Kinson v. Town of Decatur, 131 Miss. 707, 95 So. 689.

This court has held in cases too numerous to be cited that the instructions of both appellant and appellee are to be taken together and that if one side securing erroneous instructions, then if other instructions are given by the court which cure this defect, the court will not disturb the verdict.

Y. &amp M. V. Ry. v. Williams, 87 Miss. 344, 39 So. 499; M. & R. Ry. v. Hardy, 88 Miss. 732, 41 So. 505; Y, & M. . R. R. v. Kelly, 98 Miss. 367, 53 So. 779; Am. Ins. Co. v. Autrim, 88 Miss. 518, 41 So. 257; Hett v. Terry, 92 Miss. 671, 46 So. 829; M. & V. R. R. Co. v. McGehee, 93 Miss. 196,...

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