Home Ins. Co. of New York v. Dahmer

• Decision Date: 30 October 1933
• Docket Number: 30791
• Court: Mississippi Supreme Court
• Parties: HOME INS. CO. OF NEW YORK v. DAHMER et al

150 So. 650

167 Miss. 893

HOME INS. CO. OF NEW YORK v. DAHMER et al

No. 30791

Supreme Court of Mississippi

October 30, 1933

Division B

1. MUNICIPAL CORPORATIONS.

Ordinance establishing fire limits and relating to construction of buildings therein held void for insufficiency of title, where title referred to use of fire protection equipment (Code 1930, section 2544).

2. MUNICIPAL CORPORATIONS.

Statute providing that ordinance shall contain only one subject which shall be clearly expressed in title is mandatory (Code 1930 section 2544).

3. MUNICIPAL CORPORATIONS.

Statute requiring that subject of ordinance shall be "clearly expressed in title" requires that title so express subject that lawmakers and people may not be left in doubt as to matters treated (Code 1930, section 2544),

4. APPEAL AND ERROR.

That defect in ordinance, on which judgment was based, was cured by amendatory ordinance, excluded on defendant's objection, held not to prevent reversal on defendant's appeal, since on another trial defendant could assert other grounds of objection to amendatory ordinance.

5. APPEAL AND ERROR.

Appellant held not estopped from attacking validity of ordinance admitted over its objection, by having obtained instruction which assumed that ordinance was properly in evidence.

6. APPEAL AND ERROR.

Party who yields and makes best of situation when cause is erroneously tried over his objection waives no right on appeal.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS Judge.

Action by John Dahmer and another against the Home Insurance Company of New York. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Butler & Snow, of Jackson, Ward Allen and W. H. Lott, both of Greenwood, for appellant.

The ordinance, the admission of which in evidence is here complained of, was recorded in Ordinance Book 2, at page 363, and was entitled as follows: "An ordinance regulating the use of fire protection equipment."

The ordinance of the city of Greenwood appearing in Ordinance Book 2, at page 363, was improperly admitted in evidence, for the reason that the subject-matter of said ordinance was not clearly expressed in its title.

Section 2544 of the Mississippi Code of 1930; Sample et al. v. Town of Verona, 94 Miss. 264, 48 So. 2; 43 C. J., p. 523, Municipal Corporations, section 805.

The ordinance establishes a fire limit, defines the boundaries thereof and makes numerous regulations in regard to building within said fire limits. Merely to state the subject-matter of the ordinance and the title thereof is to show conclusively that the subject-matter of the ordinance is not clearly expressed in its title. In fact, the subject-matter of the ordinance is not expressed in the title at all, either clearly or otherwise.

Richards v. Town of Magnolia, 100 Miss. 249, 56 So. 386.

The ordinance was inadmissible in evidence for the reason that no note was appended to it stating the date of its passage, and it was not set forth at length in the ordinance book.

Section 2545, Code of 1930; City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161.

The ordinance introduced in evidence was the ordinance as it appeared in the ordinance book and not as it appeared in the minute book, and as the ordinance was not copied in the ordinance book as provided by statute it was clearly admissible.

As the courts do not take judicial notice of municipal ordinances, the burden was upon the appellees of showing that the ordinance was passed before the loss by fire and that it is applicable to this case. This burden was not met by appellees, for the date of the passage of this ordinance, if any, nowhere appears.

Section 2547, Code of 1930; Bugg v. Town of Houlka, 122 Miss. 40, 84 So. 387; Section 2545, Code of 1930.

We wish to emphasize the fact that it appears from the evidence that there is no ordinance of the city of Greenwood establishing a fire limit. The ordinance that appears in Minute Book 6, at page 343, which is the only one passed by the city council, contains no description of any fire limit. The alleged ordinance appearing in Ordinance Book 2, page 363, does contain a description of a fire limit, but that description was one inserted by the city clerk in copying the ordinance into the ordinance book from the minute book. It was an act of the city clerk and not an act of the city council.

H. C. Mounger and Alfred Stoner, both of Greenwood, for appellees.

It is true that the record does not show that the ordinance bore a date, but copying the ordinance either correctly or incorrectly or not copying and transferring it to the ordinance book at all does not affect its validity.

City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161.

The subject of the ordinance was clearly expressed, as found in the original minutes. This was the true evidence, not the copy made by the clerk.

In Bugg v. Town of Houlka, a case cited by appellants, and reported in 122 Miss. 400, 84 So. 387, it is held that where there is nothing in the evidence to impeach the document as a public record, it is competent testimony to prove the existence of the ordinance in question. In the case at bar there was nothing in the evidence to impeach the existence of the record, particularly when taken in connection with the minutes passing said ordinance. There was certainly an ordinance establishing the fire limits, and this was abundantly proven by the evidence.

We presume that the court excluded the minutes on the theory that we should have copied these minutes as exhibits to the declaration. We do not think this was necessary. We filed as an exhibit to the declaration a copy of the insurance policy. We also filed a copy of the ordinance as found in the ordinance book.

Palmetto Fire Insurance Company v. Allen, 105 So. 769; Panola County Bank v. Nesson Lumber Co., 117 Miss. 583, 78 So. 517.

We do not think it was necessary to set forth the various steps in the passage of this ordinance. The ordinance is perfect as found in the ordinance book, and fully complies with the law. There was nothing to impeach it.

Bugg v. Town of Houlka, 122 Miss. 400, 84 So. 387.

Argued orally by W. H. Lott, for appellant, and by H. C. Mounger and Alfred Stoner, for appellees.

OPINION

Anderson, J.

Appellees, John Dahmer and F. A. Wright, brought this action against appellant in the circuit court of Leflore county on a fire insurance policy of three thousand dollars, to recover that amount, based on the alleged total destruction by fire of a building in the city of Greenwood, owned by appellee Dahmer, in which insurance policy there was a mortgage clause in favor of appellee Wright, who held a first mortgage on the property. There was a trial resulting in a verdict and judgment in favor of appellees in the amount sued for. From that judgment, appellant prosecutes this appeal.

Appellees averred in their declaration that on August 30, 1931, while the policy of insurance was in effect, the building insured was damaged by fire to an amount greater than one-half of its total value, exclusive of the value of the foundation, and that under the provisions of an ordinance of the city of Greenwood, entitled "an ordinance regulating the use of fire protection equipment," recorded in Ordinance Book 2 at page 363, repair of the building was prohibited, by reason whereof the building became a total loss to appellees, and entitled them to recover from appellant the full amount of the insurance provided for in the policy. A copy of the ordinance referred to was attached to appellee's declaration as an exhibit. Appellant pleaded the general issue.

On the trial the ordinance was admitted in evidence over appellant's objection. One of appellant's grounds of objection was that the ordinance was void because the subject of which it treated was not clearly expressed in its title, as required by section 2544, Code of 1930. We have in this state, and have had for many years, a valued policy statute, section 5183, Code of 1930.

Section 1 of the ordinance established fire limits in the city of Greenwood and defined the boundaries thereof, and provided that no material should be used in constructing or repairing any building in such district except of brick, stone, or concrete, unless a special permit be first obtained from the city authorities. Section 2 of the ordinance provided that no building having frame, wood, or veneered walls should be erected or moved into the fire district. Section 3 provided that the ordinance should apply to buildings within the fire limits then existing or which might afterwards be established. Section 4 provided for the erection within the fire limits of temporary one-story frame buildings for the use of buildings on lots where buildings were being erected. Section 5 provided for the erection of certain frame sheds. Section 6 provided for the...