October 2, 1961.
1. Appeal — bond — appeal as not prematurely perfected.
Motion of certain defendants to docket and dismiss appeal, as prematurely perfected, because plaintiffs filed bond before final order dismissing cause for plaintiffs' failure to amend or plead further within permitted time would be overruled where judge had announced in previous order granting time to amend or plead further his ruling on pleadings.
2. Municipalities — assault and battery by police officers — principle of municipal immunity invoked.
City was not liable for acts of policemen, in performance of their duties as policemen and not in discharge of any corporate function, in course of which they assertedly beat a plaintiff.
3. Pleading — husband and wife — action for personal injuries to husband and action for loss of consortium to wife not subject to joint action.
Declaration pleading cause for personal injuries to husband and cause for loss of consortium to wife pleaded two distinct and separate causes of action, but declaration being bad as to form, leave to amend by dropping consortium cause was granted.
Headnotes as revised by Jones, J.
APPEAL from the Circuit Court of Adams County; JAMES A. TORREY, J.
Carl A. Chadwick, Natchez; William L. Koerber, Vidalia, La., for appellants.
I. A policeman who commits an assault and battery in the course of his employment is liable for damages caused thereby to the assaulted party. Anderson v. Vanderslice, 240 Miss. 59, 126 So.2d 523; Wray v. McMahon, 182 Miss. 592, 182 So. 99.
II. A wife has a cause of action for loss of consortium resulting from a wilful, unprovoked assault and battery on her husband. Nash v. Mobile O.R. Co., 149 Miss. 823, 116 So. 100; 27 Am. Jur., Secs. 499 et seq., 513; Black's Law Dictionary (4th ed.) p. 382, word "consortium".
III. Failure to state a cause of action and misjoinder of causes of action are properly raised by demurrer. Beddingfield v. New Orleans N.E.R. Co., 110 Miss. 311, 70 So. 402; Hawkins v. Scottish Union Nat. Ins. Co., 110 Miss. 23, 69 So. 710; Illinois Cent. R. Co. v. Abrams, 84 Miss. 456, 36 So. 542; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 743; Stringer v. Consumers Credit Corp., 234 Miss. 240, 105 So.2d 756; Secs. 732, 1490, 1498, 1499, 1544, Code 1942; 41 Am. Jur., Pleading, Secs. 224, 227.
IV. When a demurrer contains grounds that are inconsistent and not pleaded alternatively, the Court in sustaining the demurrer and allowing plaintiffs to amend should at least state which ground or grounds are upheld so that plaintiffs know in what manner their declaration is defective and, consequently, in what manner it is to be amended.
V. A corporate municipality is liable for injuries suffered by an individual through an assault and battery committed in the course of employment by policemen hired and retained by the mayor and board of aldermen of said municipality for the performance of duties corporate and governmental in nature with full knowledge, prior and subsequent to the employment, that said policemen were dangerous, incompetent, and vicious; the liability being predicated on the board of aldermen and mayor's gross negligence in hiring and retaining such individuals and not on the individual policemen's acts. City of Meridian v. Beeman, 175 Miss. 527, 166 So. 757; Mississippi Baptist Hosp. v. Holmes, 214 Miss. 906, 55 So.2d 142; Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465.
VI. Corporate municipalities are generally immune from liability for tortious acts of its employees committed in the performance of purely governmental functions and, assault and battery by a policeman in the performance of his job has been held a tortious act committed in the performance of a governmental function. Anderson v. Vanderslice, supra; Bates v. City of McComb, 181 Miss. 336, 179 So. 737.
VII. The subject immunity rule is a court created, illogical, ill-founded, unjustified, anachronistic, enigmatic exception to the general law of tort. Hargrove v. Town of Cocoa Beach (Fla.), 96 So.2d 130; Molitor v. Kaneland Community Unit Dist. No. 302 (Ill.), 163 N.E.2d 89; Anno. 60 A.L.R. 2d 1198; 31 Mississippi Law Journal, p. 313.
VIII. The rule will be receded from and overruled by the courts without legislative intervention. Mississippi Baptist Hosp. v. Holmes, supra; Bates v. City of McComb, supra; Bradley v. Jackson, 153 Miss. 136, 119 So. 811; Hargrove v. Town of Cocoa Beach, supra; Molitor v. Kaneland Community Unit Dist. No. 302, supra; Russell v. Ben of Devon, 2 T.R. 677, 100 Eng. Rep. R. 35; Anno. 60 A.L.R. 2d 1198; 38 Am. Jur., Municipal Corporations, Secs. 571-573, 574; 63 C.J.S., Municipal Corporations, Secs. 746, 747.
IX. Regardless of the economic, political, or administrative problems involved, since the Court is not equipped to delve adequately into such problems, a court established rule of law of public policy should be overruled when as a matter of law it is shown to be unreasonable, unfounded, illogical and unjust, especially when said rule is already an exception to the general rule, and is under severe criticism from most legal scholars. Anderson v. Vanderslice, supra; Hargrove v. Town of Cocoa Beach, supra; Mississippi Baptist Hosp. v. Holmes, supra; Molitor v. Kaneland Community Unit Dist. No. 302, supra.
C.L. Collins, Natchez, for appellee, City of Natchez, Mississippi.
I. The City of Natchez is not liable for the tortious acts of policemen committed in the performance of a governmental duty or while solely engaged in carrying out matters pertaining to the police powers of the City.
II. The City of Natchez is not liable for unlawful assault and battery committed by police officers while engaged in enforcing the laws of the City, even though the appointing authorities knew, or by exercise of reasonable care should have known, at the time of the appointment of said officers, that they were dangerously hot-headed, belligerent in nature and temperament and incompetent or unsuited for their employment.
III. This Court should not change the rule of municipal immunity, when the municipality is engaged in the performance of a governmental duty, without legislative intervention or action.
Collation of authorities: Anderson v. Vanderslice, 240 Miss. 59, 126 So.2d 522; City of Hattiesburg v. Buckalew, 240 Miss. 323, 127 So.2d 428; City of Meridian v. Beeman, 175 Miss. 527, 166 So. 757; 38 Am. Jur., Sec. 572 p. 261; McQuillin on Municipal Corporations, Secs. 53.29, 53.48.
Berger, Callon Zuccaro, J.H. Keyer, Natchez, for appellees, Earl F. Poindexter and Dennis Lewis.
I. Cited and discussed the following authorities: Brahan v. Meridian L. R. Co., 121 Miss. 269, 83 So. 467; Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631; Nash v. Mobile O.R. Co., 149 Miss. 823, 116 So. 100; Smith v. Nicholas Bldg. Co., 93 Ohio St. 101, 112 N.E. 204; Tobiassin v. Polley, 96 N.J.L. 66, 114 A. 153.
On May 28, 1960, Wendell Wayne Simpson and wife, Mrs. Wendell Wayne Simpson, filed their declaration against Earl F. Poindexter, Dennis Lewis and the City of Natchez. The declaration alleged that Poindexter and Lewis were policemen employed by the City of Natchez; that the duties of the policemen required them to serve not only as policemen but also to perform certain corporate functions; that for several months prior to the occurrence mentioned in the declaration the Mayor and Board of Aldermen of the City were apprised of, or should have been apprised of, the fact that said Poindexter and Lewis were dangerously hot-headed, belligerent, incompetent and unsuited for their employment.
The declaration alleged that on or about June 1, 1959, plaintiff, Wendell Wayne Simpson, was arrested by said policemen on a misdemeanor charge, and while in the custody of said officers, the plaintiff, after arriving at the city jail and within the confines of the jail, was wilfully, without cause, justification, or provocation, severely and brutially beaten by said policemen, they using blackjacks, police sticks, clubs or fists, and that said beating occurred while the said Simpson was in a defenseless and helpless condition. After alleging his injuries, it further charged that because of said injuries the said Simpson now ambulates with a hemiplegic gait with great difficulty; is no longer able to perform work of any nature; is unable to lead a normal life, suffers extreme anguish, humiliation, frustration and despondency, and is in constant agonizing pain and suffering. It alleged that the said policemen and the City were liable and sought to recover damages for the said Simpson in the amount of $240,000.
In the same declaration, it was alleged that the injuries to the plaintiff, Wendell Wayne Simpson, had caused the other plaintiff, his wife, damages in the amount of $50,000, including loss of consortium, mental anguish, frustration and despondency. Judgment was sought against all the defendants for the said sum of $240,000 in favor of the husband and $50,000 in favor of the wife.
The City of Natchez filed a general demurrer, which was sustained, and the plaintiffs declining to amend, the declaration, insofar as the City of Natchez is concerned, was dismissed and an appeal granted to this Court.
The defendant policemen filed a motion to strike the declaration because it contained a misjoinder of causes of action. The two policemen also demurred, assigning as grounds that (1) plaintiff, Mrs. Wendell Wayne Simpson, states no cause of action; (2) the plaintiff, Wendell Wayne Simpson, states no cause of action and (3) the declaration states a misjoinder of causes of action.
The plaintiffs thereupon filed a motion alleging that the motion to strike and the demurrer of the two policemen were general, indefinite and uncertain; that the policemen did not specify what causes had been improperly joined, and consequently plaintiffs were unable to properly consider the merit thereof.
The matter came on for hearing before the court on July 12, 1960, and an order was entered reciting that the matter was heard on separate demurrer of the two policemen and on the plaintiffs' motion for a more specific assignment of cause, and the court having considered same, sustained the demurrer and gave the plaintiffs the right within thirty days to amend the declaration. On November 7, 1960, a final order was entered reciting that the thirty days granted plaintiffs to amend had expired without any amendment and the plaintiffs having refused to amend or plead further, the declaration was dismissed and the plaintiffs granted the right of appeal to this Court.
(Hn 1) The plaintiffs filed bond on September 30, 1960, as provided by the order of the court, appealing as to the City of Natchez, and on October 5, 1960, filed bond appealing as to the policemen.
The final order as to the policemen had not been entered at the time of the filing of said bond and the defendant policemen have filed a motion herein to docket and dismiss the appeal as having been prematurely perfected.
It seems that thirty days after the original order of July 12th appellants forwarded to the circuit judge a final order dismissing the case and at the time the bond was filed were under the impression the order had been entered, when as a matter of fact it was not entered until November 7, 1960.
Of course, the circuit judge had announced in the previous order his ruling and we are overruling the motion to docket and dismiss on the strength of Hughes, et al v. Kaw Investment Company, 129 Miss. 434, 91 So. 702; and James v. Woods, 65 Miss. 528, 5 So. 106.
(Hn 2) The declaration showed unequivocably that the officers were acting in the performance of their duties as policemen and not in the performance of any corporate function. Insofar as the liability of the City of Natchez is concerned, this question is fully settled by Anderson v. Vanderslice, et al., 126 So.2d 522, decided January 23, 1961, and the case in all respects is affirmed as to the City of Natchez.
(Hn 3) The declaration joins a cause of action for personal injuries to the husband with an action for loss of consortium by the wife. The declaration, therefore, embraces two separate and distinct causes of action. Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476. Our Court has held in Nash v. M. O. RR. Company, 149 Miss. 823, 116 So. 100, that the wife has no cause of action for loss of consortium because of injuries to the husband. However, the declaration sought to recover for same. The lower court, in sustaining the demurrer of the policemen, did not specify upon what ground the demurrer was sustained, but we are assuming that it was because of the joinder of the two causes of action. The declaration stated a good cause in favor of the plaintiff husband against the two policemen, but the attempt to join another distinct action therein rendered it bad as to form.
The lower court sustained the demurrer and gave plaintiffs thirty days within which to amend. On failure to amend, the suit was dismissed. The judge was correct in sustaining the demurrer of the policemen, however, inasmuch as this was not an adjudication on the merits but solely on form, and inasmuch as the declaration stated a good cause of action against the policemen and was defective only as to form, we are remanding the case and providing that the plaintiffs shall have fifteen days from receipt by the lower court of the man date of this Court within which to amend the declaration by eliminating therefrom the claim of the wife. Cf. Railway Co. v. McCerren, 75 Miss. 687, 23 So. 423.
Affirmed as to the City of Natchez; affirmed and remanded with leave to amend as to appellees Poindexter and Lewis; appeal costs taxed against appellants.
Lee, P.J., and Kyle, Gillespie and McElroy, JJ., concur.
ON SUGGESTION OF ERROR
Appellants contend on suggestion of error that we erred in that the opinion referred to Nash v. M. O. Railroad Co., 149 Miss. 823, 116 So. 100, which held that a wife has no cause of action for loss of consortium.
The basis of our decision that the lower court was correct in sustaining the demurrer was the joining of two causes of action in one suit. We said in the last paragraph that the adjudication was not on the merits, but solely on form. The reference to the merits of the action for loss of consortium was unnecessary to the decision of the case and should be treated as dictum.
The suggestion of error is without merit on the other questions therein raised, and, therefore, it is overruled.
Suggestion of error overruled.
Lee, P.J., and Kyle, Gillespie and McElroy, JJ., concur.