Duckworthv.Mull

Supreme Court of North CarolinaDec 1, 1906
55 S.E. 850 (N.C. 1906)
55 S.E. 850143 N.C. 461

(Filed 22 December, 1906.)

Torts — Jurisdiction of Justice — "Property in Controversy."

1. In an action begun before a justice of the peace in which the plaintiff made demand in the sum of $50 for damages done to his property and premises by defendant in depositing the carcass of a dead horse near the lands of the plaintiff, whereby the comfort and enjoyment of his home were impaired and a nuisance committed to his premises, the Superior Court, on appeal, erred in dismissing the action for want of jurisdiction in the justice.

2. Art. IV, sec. 27, of the Constitution, and Revisal, sec. 1420, (enacted to carry out this provision), which provides that "justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract wherein the value of the property in controversy does not exceed $50," comprehend all actions ex delicto, the term "property in controversy" meaning the value of the injury complained of and involved in the litigation, and where a plaintiff, in good faith, states or limits his demand in actions of this character at fifty dollars or less, the justice has jurisdiction concurrent with the Superior Court to hear and determine the matter.

ACTION by Frank Duckworth against F. R. Mull, heard on appeal from a justice of the peace by O. H. Allen, J., and a jury, at the June Term, 1906, of BURKE.

Avery Ervin for the plaintiff.

Avery Avery for the defendant.


WALKER and CONNOR, JJ., dissenting.


The plaintiff made demand in the sum of fifty dollars ($50) for damage done to his property and premises by defendant in depositing the carcass of a dead horse near the lands of the plaintiff, whereby the comfort and enjoyment of his home were impaired and a nuisance (462) committed to his premises by the filth and stench arising and flowing therefrom.

There was evidence on the part of the plaintiff tending to show that the defendant, on 22 June, 1904, had placed in a gully above his (plaintiff's) spring and premises, the carcass of a horse; that the point where the same was deposited was only some fifty yards above the head of a branch which ran within ten steps of plaintiff's spring, and that when it rained, the water would run down the gulley from the carcass from the head of the branch and on down past the spring.

There was evidence tending to show further that the plaintiff suffered great annoyance and discomfort from the stench arising from said carcass; that it could be noticed distinctly 300 yards below the premises and spring of the plaintiff, and in the field above his house; that his stock refused to drink in the branch at his watering-place; that the buzzards sat in the trees and around the spring, and that he was forced to get water at another place; that plaintiff, prior to the beginning of this action, went to defendant and asked him to cover up or remove the carcass, but defendant refused to do so.

At the close of plaintiff's testimony the defendant moved for judgment as of nonsuit under the Hinsdale act for want of jurisdiction in the justice of the peace before whom the same was begun, and of the Superior Court on appeal to hear and determine the same. Motion allowed, and plaintiff excepts. Judgment for defendant, to which judgment plaintiff excepted and appealed to the Supreme Court.


The Constitution of this State, Art. IV, sec. 27, ordains that justices of the peace shall have jurisdiction under such (463) regulations as the General Assembly shall prescribe, of civil actions founded on contract wherein the sum demanded shall not exceed $200 and wherein the title to real estate shall not be in controversy; and provides further that the General Assembly may give to the justices of the peace jurisdiction of other civil actions wherein the value of the property in controversy does not exceed $50.

Carrying out the provisions of this section, the Legislature has enacted as follows:

Sec. 1419: "Justices of the peace shall have exclusive original jurisdiction, of all civil actions founded on contract except, ( a) wherein the sum demanded, exclusive of interest, exceeds $200; ( b) wherein the title to real estate is in controversy."

Sec. 1420: "Justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract wherein the value of the property in controversy does not exceed $50." Revisal 1905, secs. 1419, 1420.

By this statute, the Legislature has conferred on justices of the peace jurisdiction in terms certainly as broad as the Constitution permitted, and this jurisdiction, therefore, will depend on the true interpretation of the constitutional provision.

The question involved here being one of civil jurisdiction, only the clauses of the Constitution pertinent to that inquiry have been quoted. And the subject of contract having been dealt with in express terms, when the Constitution provided that jurisdiction could be conferred in "other civil actions," it was referring to actions of tort, and the question presented here is whether this clause authorizing that jurisdiction could be given in "other civil actions where the value of the property in controversy does not exceed fifty dollars," includes all torts or only a restricted class of torts.

On that question we think that the decisions of this Court, already made, lead necessarily to the conclusion that the clause (464) referred to comprehends, and was intended to comprehend, all actions ex delicto; that the term, "property in controversy," here used as determinative of jurisdiction, by correct interpretation, means the value of the injury complained of and involved in the litigation; and where a plaintiff, in good faith, states or limits his demand in actions of this character at fifty dollars or less, the justice, as provided by the statute, has jurisdiction concurrent with the Superior Court to hear and determine the matter.

Thus in Malloy v. Fayetteville, 122 N.C. 480, it was held:

(a) "The provision in sec. 27, Art. IV, of the Constitution, authorizing the General Assembly to give to justices of the peace `jurisdiction of other civil actions wherein the property in controversy does not exceed fifty dollars,' is not a restriction, even by implication, to forbid conferring jurisdiction where damage, and not property, is in controversy.

(b) "Section 888 of the Code authorizing action for `damages' not exceeding fifty dollars to property, though the property be of greater value, does not contravene sec. 27 of Art. IV of the Constitution, and is authorized by sec. 12 of said article.

(c) "A justice of the peace has jurisdiction of an action for damages not exceeding fifty dollars for injury to personal property, though such property be of greater value than fifty dollars."

This was an action for negligent injury to personal property where the property, a horse and buggy, was shown to be worth more than one hundred dollars; but the injury thereto, the matter in litigation, was alleged and proved to be less than fifty dollars, and the verdict and judgment were upheld.

And in the more recent case of Watson v. Farmer, 141 N.C. 452, approving Malloy v. Fayetteville, it was held:

"Courts of justices of the peace have jurisdiction to hear and (465) determine actions for injury to personal property and to render judgments thereon, not exceeding fifty dollars, and the jurisdiction is not determined by the value of the property injured, but by the amount demanded in the warrant or complaint."

Justice Brown, in delivering the opinion, says "the jurisdiction of the justice is not to be measured by the value of the property, but by the amount demanded in the warrant or complaint."

In both of these opinions the value of the property injured is rejected as the test of jurisdiction, and the value of the injury, as defined and limited by the summons and complaint, is adopted.

And we are not impressed with the position, taken, that this addition to a justice's jurisdiction should be confined to actions for claim and delivery of personal property.

While the proceedings of the Convention of 1875, this being the convention by which the section in question was established, are not very fully reported, we know that one of the purposes considered most desirable at that time was to enlarge the jurisdiction of justices of the peace; and no good reason suggests itself why such a purpose should be stopped short by adding only one additional cause of action to the jurisdiction already had by these officers; and we know that the first Legislature which met after this change in the organic law enacted the statute as it now appears in the Revisal, sec. 1420: "Justices of the peace shall have jurisdiction of civil actions not founded on contract wherein the value of the property does not exceed fifty dollars."

The simple, natural interpretation of the statute would make it apply to all "civil actions not founded on contracts," and should have much weight as the first legislative interpretation of the meaning of the clause in question.

Again, it is urged that if the Convention of 1875 had intended (466) to confer this extended jurisdiction in actions for tort, they would have used the terms, "in other actions where the amount demanded does not exceed fifty dollars," as they did in speaking of contract.

The answer is, that in contract the "sum demanded" would include every case of contract; whereas, in tort, these words would not have been sufficiently broad, inasmuch as they would have excluded actions for specific personal property, one of the most useful and common of the actions ex delicto. And it might be further answered that if the convention had intended to confine this jurisdiction to actions for claim and delivery, they could easily have said so; and they no doubt would, for they were a body of men who knew their minds and knew how to express their meaning in apt and forceful language.

We are clearly of the opinion, as heretofore stated, that these words, "where the property in controversy does not exceed fifty dollars," mean, and were intended to mean, the value of the injury involved in the litigation.

In the business affairs and transactions of individuals and the construction of instruments which concern the devolution and transfer of property between them, this term "property" has usually received a more restricted construction. It has been so in the decisions of our own Court; but in constitutions and public statutes where the words permit, and the spirit and intent of the law require, the word "property" has frequently and more usually been accorded the broader significance which we have given it.

In the sections of our Constitution protecting life and property, the term is held to include vested rights of action.

As said in Cooley on Constitutional Limitations (7 Ed.), p. 577: "A vested right of action is property in the same sense in which tangible things are property, and is equally protected from arbitrary (467) interference."

And in Black's Constitutional Law, p. 432, it is said: "A cause of action, accruing at common law or by a contract which is fixed and settled in a particular person, and continues in force, is a vested right within the protection of the constitutions. It is property, and it cannot lawfully be divested by legislative interference, or by taking away the legal means of making it effective, or by so hampering it with conditions or restrictions as to render it practically worthless." Also, Angel v. R. R., 150 U.S. pp. 1-19.

And in R. R. v. Dunn, 52 Ill. 260, construing a statute giving to married women control over their separate property, the term "property" was held to include a right of action for personal injury. In delivering the opinion Chief Justice Breese said: "If, then, it can be established that the right of action for this injury is property, as it came to her from a source other than her husband, then it was her separate property and comes under the operation of the act." And the Chief Justice then proceeds: "Chancellor Kent, in his Commentaries, says another leading distinction in respect to goods and chattels is the distribution of them into things in possession and things in action. The latter are personal rights, not reduced to possession, but recoverable by suit at law. Money due on bond or other contract, damages due for breach of covenant, for the detention of chattels or for torts, are included under this general head or title of things in action. 2 Kent's Com. (Comstock's Ed.), 432, under the head of the nature and various kinds of `personal property.' A right to sue for an injury is a right of action; it is a thing in action, and is property according to this authority."

There are decisions by the Supreme Courts of Michigan, Rhode Island and Connecticut to like effect in questions of similar import. Dunlap v. R. R., 50 Mich. 470; Cooney v. Lincoln, 20 R. I., 183; Hubbard (468) v. Brainard, 35 Conn. 563.

There is a decision to the contrary in Wisconsin: Gibson v. Gibson, 43 Wis. 23. In that case, some weight was given to the wording of the particular statute. Apart from this we do not think this case is well considered, or that it is in accord with the weight of authority.

We are therefore of opinion, and so hold, that the Constitution has granted the right to confer jurisdiction to the extent therein specified in the case of all actions arising ex delicto; and the Legislature having given this jurisdiction to justices of the peace, there was error in dismissing the case, and the judgment is reversed.

Judgment reversed.