Moore v. Abdalla
| Decision Date | 23 October 1944 |
| Docket Number | 35682. |
| Citation | 197 Miss. 125,19 So.2d 502 |
| Court | Mississippi Supreme Court |
| Parties | MOORE v. ABDALLA. |
F D. Hewitt, of McComb, for appellant.
Roach & Jones, of McComb, for appellee.
Appellee hereafter called the plaintiff, instituted his action in tort against appellant's decedent, charging that by the negligence of the defendant's servant, the automobile of plaintiff was damaged in a collision; and the exact amount expended in repairs was stated in the declaration. Defendant took the position that the action was one in debt and filed a plea of nil debit and therewith a counterclaim for the money spent for the repair of defendant's automobile damaged in the same collision.
Plaintiff demurred to the pleas on the ground that the proper plea would be not guilty and that no counterclaim is allowed in an action in tort. The demurrer was sustained and a writ of inquiry ordered. When the case came on further to be heard plaintiff insisted that the only issue was upon a writ of inquiry, while defendant apparently was demanding a trial on his plea and counterclaim. The court thereupon dictated into the record, as may be done under Section 1639, Code 1942, his ruling which, when reduced to its real effect, was that the case should proceed to trial as if the plea interposed was one of the proper general issue, and the evidence was taken and the instructions to the jury for both sides were drawn in conformity to that course of trial. The verdict of the jury was for the plaintiff for the full amount sued for.
Although many progressive members of our bar think it ought to be otherwise, there is no provision in our law for a counterclaim in an action in tort, even when the counterclaim grows out of the same occurrence; and because a recoupment can be used defensively only, Amory Independent Tel. Co. v. Cox, 103 Miss. 541, 547, 60 So. 641; Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 820, 66 So. 214, and is therefore of no more practical service in tort actions than the plea of the general issue, a recoupment has never been used in such actions in this State, so far as any of us can now recall. The court was, therefore, technically correct in sustaining the demurrers, but when later he ruled that the trial would proceed, and it did proceed, as if the defendant had plead properly, this was all that defendant was entitled to ask or expect.
Looking to the trial, we find only one reversible error in so far as assigned or argued. The court instructed the jury that if they found for the plaintiff their verdict might be for the full amount sued for, and yet another instruction was given authorizing the application of the comparative negligence statute.
The collision occurred at the intersection of Beach and Venable Streets in the City of McComb. Beach Street runs east and west and is a through or preferred street. Venable runs north and south and is a secondary street, with a stop sign requiring motor vehicles about to cross Beach to stop, or slow down to that which in the given situation is equivalent to a stop. Section 8213, Code 1942. Inasmuch as the jury allowed plaintiff the full recovery, it is evident that they fully accepted plaintiff's version, which was that defendant's motor vehicle drove into Beach Street going north at the highly excessive speed of approximately fifty miles an hour and without stopping or slowing to a stop at the intersection stop sign as required by the statute. On the other hand, it is admitted by plaintiff's driver, and is...
To continue reading
Request your trial
-
Herrington v. Hodges, 42911
...& S. I. R. Company v. Saucier, 139 Miss. 497, 104 So. 180; Railway Express Agency, Inc. v. Mallory, 5 Cir., 168 F.2d 426; Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502; Illinois Cent. R. Company v. Handy, et al., 108 Miss. 421, 66 So. 783; McMurtry v. Louisville, New Orleans & Texas Ry. Co.......
-
Vines v. Windham
...to the Plaintiff. This ought to be enough. See, e.g., Stewart v. Davis, 571 So.2d 926, 931, fn. 3 (Miss.1990); Moore v. Abdalla, 197 Miss. 125, 130, 19 So.2d 502, 503-04 (1944). I would affirm. Because the Court does not, I respectfully ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, J., c......
-
McCorkle v. United Gas Pipe Line Co.
...v. Bradley, 220 Miss. 304, 70 So.2d 611 (1954); Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781 (1950); Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502 (1944); Gulf Refining Co. v. Brown, 196 Miss. 131, 16 So.2d 765 (1944); Ross v. Louisville & N. R. R., 178 Miss. 69, 172 So. 7......
-
Railway Exp. Agency v. Mallory
...Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459." Gulf & S. I. R. Co. v. Saucier, 139 Miss. 497, 104 So. 180, 181; and see Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502. In the Gulf & S. I. R. Co. case it was further held that absent the proper pleading and request for an instruction the appell......