Shay v. Harper

• Decision Date: 03 May 1957
• Citation: 303 S.W.2d 335,6 McCanless 141,202 Tenn. 141
• Parties: , 202 Tenn. 141 Mrs. C. P. SHAY v. Mrs. Martha E. HARPER.
• Court: Tennessee Supreme Court

Page 335

303 S.W.2d 335

6 McCanless 141, 202 Tenn. 141

Mrs. C. P. SHAY v. Mrs. Martha E. HARPER.

Supreme Court of Tennessee.

May 3, 1957.

Rehearing Denied June 7, 1957.

Gayle Malone, Trenton, for plaintiff in error.

Adams & Adams, Humboldt, for defendant in error.

BURNETT, Justice.

Heretofore application was duly made for certiorari in this case. This application was granted, arguments have been heard, briefs filed and we now have the matter for determination.

The suit originated before a justice of the peace where judgment was rendered for the plaintiff. On appeal to the circuit court the matter was tried before a jury on issues of fact submitted to that body and a judgment was likewise entered for the plaintiff for $334.16, the amount of damage to the plaintiff in error's automobile. After the judgment of the jury the defendant in error, respondent here, filed his motion in arrest of judgment. No motion for new trial was filed in the cause.

The trial court sustained this motion in arrest of judgment and on appeal to the Court of Appeals that body affirmed.

The warrant upon which ground of liability is based is a statutory (Sec. 19-402, T.C.A.) form of a civil warrant with the blanks, the names of the parties complainant filled in, the maximum amount sued for under the statute allowable in personal injury damages before a justice of the peace is sued for and the cause of action stated 'Personal & Property damage'. This is all the warrant contains setting forth the cause of action. The motion in arrest of judgment is obviously based on the ground that the warrant did not state the cause of action. The principle or basic cases relied upon to support the motion in arrest of judgment are Memphis Street R. Co. v. Flood, 122 Tenn. 56, 113 S.W. 384, and Nashville, Chattanooga & St. Louis R. Co. v. Davis, 127 Tenn. 167, 154 S.W. 530. The warrant in the Flood case was a suit for 'damages' and in the Davis case was a suit for 'damages for personal injuries' and in both of those cases this Court held that the warrants were void. In the Flood case this Court on page 78 of 122 Tenn., on page 389 of 113 S.W. says:

'* * * that a justice's warrant must contain a brief statement of the cause of action sufficient to give the defendant reasonable notice of what he is called upon to answer, and that, where the warrant fails to contain such statement, it is void, and upon the trial, on appeal to the circuit court of the state. in absence of an amendment made at the proper time, a motion made in arrest of judgment should be sustained and the suit dismissed.'

In the Davis case the Court again reiterates its reason for the holding in these two cases when it says:

'The underlying reason of the law requiring the warrant as the leading process in a suit to 'contain a brief statement of the cause of action sufficient to give the defendant reasonable notice of what he is called upon to answer' is that defendant may come to trial prepared for his defense; and this is a sound and just reason. And a warrant which does not, on its face, give such notice, is void in law, and is not cured by verdict, although under it the defendant may appear and contest the suit and be cast therein; and a motion in arrest of a judgment founded upon such a warrant is the proper step by which, after being so cast, the defendant may test the validity of the warrant.'

Obviously by what is said above in the Flood case the Court did not mean that the warrant was absolutely void but meant in fact that it was voidable subject to being corrected by amendment. This being so obvious some years later the Court in Baker v. Griffeth, 138 Tenn. 670, 200 S.W. 823, held:

'It was not meant to be ruled in [Nashville, C. & St. L.] R. Co. v. Davis 127 Tenn. 167, 171, 154 S.W. 530, that a judgment rendered upon such a defective warrant would be void where there was no motion in arrest interposed as a test of its sufficiency; nor was it meant to be held that such a warrant is so far void as not to be amendable. It is voidable upon the application of said test.'

This last case, the Baker case, was based on Section 19-425, T.C.A., which in effect provides that no cause appealed from a justice of the peace court to the circuit court or to a higher court shall be dismissed for any informality and that all amendments 'in the form of the action, the parties thereto, or the statement of the cause of action necessary to reach the merits,' shall be allowed as deemed proper by the court trying the suit.

On the trial of this case before the circuit court counsel for the plaintiff said:

'I would like to state that Mr. Adams and I have agreed, to save time and proof, that we will dispense with the proof as to the value of the automobile before the accident and immediately after it; and we admit that the repair bill was in the amount of $336.14. Is that correct, Mr. Adams:

'Mr. Adams: Yes, sir.'

Then counsel for the plaintiff said:

'And, also, that Mrs. Harper was driving one car and Mrs. Shay the other. Our question to prove is who was negligent?

'The Court: One of liability? Which one was liable?

'Mr. Malone: Yes, sir.'

Then follows the statement of counsel for the defendant which is:

'I would like to get the issues before the jury. Do you want to make a statement?'

Apparently this question was addressed to counsel for the plaintiff because he then said:

'Ladies and gentlemen, you have heard me state to the Court that Mr. Adams and I had agreed to eliminate the time of lengthy proof that is ordinarily required in property damage suits--we have agreed and admitted the repair bill to Mrs. Shay's car was $334.16. And we have further admitted, and to eliminate time, that Mrs. Shay, of course, was driving the car and that Mrs. Harper was driving a car, so the element of proof that you are required to say is who was negligent, who caused the accident.'

Then after a further statement as to how the accident happened the Court makes a statement and the warrant is read and then counsel for the defendant makes a long statement to the jury which covers something over a typewritten page. Among other things said by counsel for defendant in this statement is:

'As you probably gathered from what Mr. Malone said, Mr. Malone is suing Mrs. Harper for money for damages to Mrs. Shay's station wagon, which occurred in October of 1954 at the stop light out here by Peabody High School. Mrs. Harper, however, denies that she owes any money to Mrs. Shay as a result of this accident.'

It seems clear to us that this stipulation of counsel amounted to an amendment to the warrant upon which this suit was based. The pleadings before the justice of the peace are ore tenus which of course means by word of mouth. And when the appeal is to the circuit court they make likewise be by word of mouth. The better practice would be to reduce them to writing.

'And that which in a court of record may be done by proper pleading and proof may, as a general rule, be done before a justice of the peace of the production of the proof alone.' Wood v. Hancock, 23 Tenn. 465.

Thus it seems, to our minds, that when counsel made a statement that they had stipulated to the things that they had stipulated to as heretofore quoted, which statement was not contradicted nor is it now contradicted, that this stipulation amounted to a word of mouth amendment to the warrant so that a cause of action was thus stated. The parties plaintiff or defendant were well aware of what the suit was about, where it originated and what was being sued for. There was no surprise or advantage being taken of one or the other. Clearly justice could be done upon the introduction of all the facts pro and con, one side taking the position that there was liability and the other taking the position that there was no liability, and then a jury determining the matter on these facts. Apparently this was done as is evidenced by the bill of exceptions to which no motion for a new trial was filed.

We have in this State very liberal statutes of jeofails (Secs. 20-1501 to 20-1516, both inclusive) which show and indicate to us that amendments in this kind of a case, which is appealed from a justice of the peace court, should be rather informal and treated liberally.

It has been held by this Court that a declaration which fails to state a cause of action...