Opinion
No. 33606.
February 27, 1939. Suggestion of Error Overruled April 24, 1939.
1. JUDGMENT.
In city's action against plumbing contractor and his surety to recover money paid in settlement of judgment against city for personal injury, contractor's plea of res judicata, based on dismissal of injury action as to him, was properly overruled where city sought no relief against contractor in that action, and jury was instructed that it could find against city because it negligently failed to repair defect in street and that only city's liability was involved.
2. INDEMNITY.
Where plumbing contractor properly refilled excavation in street as required by ordinance was for jury in city's action to recover from contractor and his surety amount paid in settlement of judgment against city in favor of motorist who was injured when pavement gave way over excavation.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
W.E. Morse, of Jackson, for appellant.
The court erred in giving a peremptory instruction in favor of S.S. Richard. S.S. Richard is liable to the City of Jackson for the amount of money that the city had to pay out to satisfy the judgment of W.L. Maxwell.
A.L.I., Restatement of the Law, Restitution, sec. 76, page 334, sec. 95, page 415; Scott v. Hart, 128 Miss. 353, 91 So. 17; Section 2396, Code of 1930; Vicksburg v. Mullane, 106 Miss. 197, 63 So. 412; Wilby v. State, 93 Miss. 767, 47 So. 465; Sections 2391 and 2443, Code of 1930; Bradley v. Jackson, 119 So. 811.
While an individual has an inherent or natural right to engage in any lawful business, occupation or trade, and may use his property for that purpose, yet the nature of the business, occupation or trade sought to be carried on, may be such as to render it subject to regulatory control by a municipal corporation in the exercise of their police powers. Such regulation is permitted in the interest of public peace, health, morals and general welfare of the municipality.
57 A.L.R. 136; 36 A.L.R. 1342; 33 A.L.R. 717; 43 C.J., page 357, sec. 407, and page 411, sec. 541.
The reasonableness of municipal ordinances or regulations is committed in the first instance to the municipal authorities. But, regulations enacted by municipal corporations, including those enacted under the police powers, must be reasonable.
43 C.J. page 229, sec. 229, page 951, sec. 1727, 1729; Erie v. Caulkins, 95 Pa. 247, 27 Am. Rep. 642.
The rule is that every inference that could be drawn from the evidence should be construed most strongly in favor of the City of Jackson and as against S.S. Richard where a peremptory instruction had been granted. Robertson Robertson, of Jackson, for appellees.
The appellant failed to prove that appellee Richard violated any ordinance, resolution or regulation of the City of Jackson.
No negligence on appellee Richard's part was proven.
The doctrine of res ipsa loquitur does not apply.
C. G.R. Co. v. Coleman, 160 So. 277; Waddle v. Sutherland, 126 So. 201; Greenville v. Laury, 159 So. 121.
There is no presumption of liability against appellees because of Maxwell's judgment against appellant.
14 R.C.L. 54.
Argued orally by W.E. Morse, for appellant, and by Stokes V. Robertson, for appellee.
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 adjudicata 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 that Richard was not negligent. The court below overruled the plea of res adjudicata, and properly so, because, (1) the city was seeking no relief in the former suit against Richard, and could have sought none under that state of case, (2) because the jury in that case could have rendered the verdict against the city on the ground that it knew, or by the exercise of reasonable care should have known, of the existence of the defect in the street caused by the alleged negligence of Richard and negligently failed to repair the same, and the jury was so instructed in the event it so believed, and (3) because the jury was further instructed on behalf of the city that neither was Richard nor his bonding company any longer a party to the suit, and that the only question for the determination of the jury was the liability or not of the City of Jackson.
Therefore, the only other question for decision on this appeal is whether the evidence was sufficient to require a submission of the case to the jury on the issue of the negligence of Richard in failing to properly refill the excavation made in tunneling under the street from the curb at the place of the accident. His bond required that he comply with the city ordinance in that regard. The ordinance provided: "It shall be unlawful for any person who shall make any excavations in the Streets of this city to omit, in filling the same, to properly pack down the earth restored to make a hard surface conforming to the elevation of earth surrounding place of such excavation."
The appellee Richard was introduced as an adverse witness by the appellant, and testified that he had refilled the excavation and tamped it down in full compliance with the foregoing ordinance. To contradict his testimony, a city engineer was introduced and when asked what caused the break in the paving stated that "it was caused by not being tamped under there; nothing to support the paving, and it just fell in." He further testified in substance that after Maxwell was injured the city had to fill a hole underneath the pavement by putting some gravel in it where Richard had previously excavated the tunnel; and that the ditch or hole in the pavement where the accident occurred was over the place where Richard had previously tunneled under the street. We are therefore of the opinion that an issue was made for the jury on the question as to whether the appellee Richard had properly refilled the excavation in the manner required by the ordinance, or had negligently failed to do so.
Reversed and remanded.