Guidi v. City of Memphis

263 S.W.2d 532, 196 Tenn. 13, 32 Beeler 13, 1953 Tenn. LEXIS 399

• Court: Tennessee Supreme Court
• Decided: July 17, 1953
• Status: Published

Opinions

Mr. Chief Justice Neil

delivered the opinion of the Court.

The plaintiff in error was arrested on June 15, 1952, upon a warrant, issued by the Clerk of the City Court of Memphis, which charged him with “the offense of Vio. Sec. 1683 Exceeding the Speed Limit within the City of Memphis.” He was tried in the City Court upon said warrant on the following day and judgment entered as follows: “Judgment that the defendant pay a fine of $20.00 or be committed to the City Jail or Workhouse until the same is worked out, paid or secured according to law”, signed Carl N. Stokes, City Judge. An appeal was prayed .and granted to the Circuit Court, and a default judgment taken against him.

Following the entry of the default judgment counsel for the defendant moved the court in arrest of judgment on the ground that “the warrant issued herein, the foundation and basis of this action, is legally and fatally defective on its face and void and no valid judgment can or may be predicated thereon.” In support of this motion contention was made that it is void for “failing to legally state any claim or demand by the City of Memphis against the defendant giving the defendant no notice of what he is called upon to meet or answer.” The motion was overruled and an appeal prayed and granted to this Court.

The only assignment of error raises the single question of whether or not the warrant charges an offense, and, if so, is the language used sufficient to enable the defendant to make a proper defense thereto.

Counsel stresses the insistence that no fact is alleged which gives meaning to the words, “Sec. 1683 Exceeding-Speed Limit” and hence the warrant is void on its face; that it charges no offense.

Counsel for defendant relies upon Memphis St. Ry. Co. v. Flood, 122 Tenn. 56, 113 S. W. 384, and Nashville, C. & St. L. R. Co. v. Davis, 127 Tenn. 167, 154 S. W. 530, as sufficient controlling authority to justify a reversal of the case. Of course, other authorities are cited on the brief. But the foregoing are urged upon us as leading-eases. and decisive of the question.

The summons in the Flood Case [122 Tenn. 56, 113 S. W. 385] commanded the defendant Street Railway Company “ ‘to appear before me or some other justice of the peace in and for said County, to answer Miss Carrie Flood in a plea of damages under $500.00. ’ ” The summons in the Davis case commanded the N. C. & St. L. Ry. Co. to appear and answer “ ‘ * * * in a civil suit upon damages for personal injuries. Under $500.00.’ ” In both of these cases the warrants were held to be fatally defective as not having sufficient allegations of the alleged wrong to give notice to the defendant “of what he was called upon to answer.” In Railroad v. Davis, supra, the Court points out that on the face of this warrant there is no notice to defendant of the time when, the place where or the agency by which the personal injury was committed. In deciding that the warrant was void on its face the Court used the following language:

“Mere defects, imperfections, and incorrectness of statement, where, notwithstanding such as they may be, the warrant gives the notice required by law, are cured by verdict; but verdict does not cure where no cause of action is stated. In such case there is in law no warrant, and the so-called verdict based upon the supposed warrant is in law no verdict. The whole proceeding is void; and the law so treats it from warrant to verdict and judgment. Railroad v. Flood, supra, and authorities cited.”

The two cases relied on by counsel are easily distinguishable from the case at bar. There is no difficulty as to the controlling principle of law in the case now before us. It is settled law that a defendant in all cases is entitled to know the nature of the case against him to the end that he is able to make proper defense. But language used in this warrant is not to be given a strained and unreasonable construction. Thus in Caruthers History of a Lawsuit, Gilreath’s Revisión, Seventh Edition, See. 108, p. 114, it is said:

“The declaration should state the cause of action clearly, explicitly, and briefly.

“But how clear and explicit must the statement be? No more than to convey a ‘reasonable certainty of meaning,’ and ‘by a fair and natural construction,’ to show a substantial cause of action. No cavil, or straining, or criticism, is to be allowed as ground of exception, if the statement is intelligible enough, according to the ordinary meaning of the language used.”

Had the warrant merely charged the defendant with the violation of .a certain numbered section of the traffic laws of Memphis, and nothing more, it would have been fatal.

There is no merit in the insistence of counsel that the statement or charge in the warrant “Exceeding Speed Limit” is a mere conclusion of law. On the contrary it is a clear and intelligible statement of a fact, i. e., that the defendant was violating the traffic laws of the City of Memphis and named a specific offense. Moreover we think the language in the warrant is sufficient notice to the defendant that he was arrested for exceeding the speed limit as fixed by the laws and ordinances of the City of Memphis. We are justified in the assumption that the defendant was driving an automobile when he was arrested and held a driver’s license which authorized him to operate it. It is not unreasonable to suppose that operators of motor-propelled vehicles in Memphis and ¡Shelby County are fully cognizant of all traffic laws in said city, including the limit as to the speed of such vehicles.

Something is said in argument that the trial judge took cognizance of the provisions of “Sec. 1683” in overruling the defendant’s motion to suspend the judgment. There is nothing in the record disclosing what he had to say about it. Whether he did or did not take judicial cognizance of the provisions of the traffic ordinance of Memphis is wholly immaterial. While the general rule is that ordinances or bylaws of municipalities are not judicially known to courts having no special function to enforce them, there is respectable authority to the effect that “ judicial notice may be taken of a city ordinance where there is an admission of the existence thereof by counsel, or where the existence of the ordinance is so generally known that the court may notice it as a matter of common knowledge.” 31 C. J. S., Evidence, Sec. 27, p. 541.

Suffice it to say that all persons who plead ignorance of such laws should have their driver’s license revoked. We think it is unreasonable, not to say frivolous, to insist that for the warrant in the case at bar to be valid it should spell out the traffic ordinance of the city, especially as to speed of automobiles, the time and place and zone where speed limits are fixed and are in effect.

The .assignment of error is overruled, and the judgment of the trial court is affirmed. The case is remanded for enforcement of the judgment.