Opinion
No. 35320.
April 12, 1943.
1. APPEAL AND ERROR.
On appeal from judgment in a law action, the matter for determination by the Supreme Court is whether there is substantial evidence to support the verdict and whether the jury acted reasonably in considering and weighing the evidence.
2. INSURANCE.
In action on automobile fire policy wherein insurer's defense that insured had burned the automobile was based upon alleged confession made by insured to officers who freed insured after confession was obtained, whether insured had burned the automobile so as to preclude recovery on policy was for jury.
APPEAL from the circuit court of Scott county, HON. PERCY M. LEE, Judge.
Jackson, Young, Friend, of Jackson, for appellant.
The court erred in refusing appellant's request for a peremptory instruction, for appellee's testimony is incredible and unbelievable.
Covington County v. Fite, 120 Miss. 421, 82 So. 308; Fox v. Matthews, 33 Miss. 433; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Davis, Director General of Railroads, v. Temple, 129 Miss. 6, 91 So. 689; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
The verdict of the jury is contrary to the overwhelming weight of the credible testimony and the cause should be reversed and remanded for a new trial.
Williams Yellow Pine Co. v. Henley, supra; Yazoo M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; Beard v. Williams, 172 Miss. 880, 161 So. 750; Universal Truck Co. v. Taylor, 174 Miss. 353, 164 So. 3; Mobile O.R. Co. v. Johnson, 157 Miss. 266, 126 So. 827; Y. M.V.R. Co. v. Lamensdorf, supra; Teche Lines v. Bounds, supra.
Ernest L. Shelton, of Jackson, and Colbert Dudley, of Forest, for appellee.
In the case at bar appellee sued on an insurance policy on his automobile issued by the appellant. The appellant defended on the ground that appellee burned the automobile and was precluded from collecting the insurance. Appellee denied that he burned the car. Appellant introduced an alleged confession and three witnesses who testified that appellee made a free and voluntary confession and signed the confession of his own free will and accord. Appellee does not deny signing the alleged confession but testified that when he signed the alleged confession he thought he was talking to an insurance man and that when he signed the paper or alleged confession he was signing to get a new car. He denies that he signed the paper in the presence of the witnesses other than Mr. Edgeworth, the insurance man, and that when he learned that the paper he had signed was a confession he refused to acknowledge his signature before the other witnesses and that he did not acknowledge his signature before the other witnesses until after they had proceeded to take him to Forest, Mississippi, to jail. That the reason he came back and acknowledged his signature before the witnesses was because his wife and baby were both sick, under the care of a neighbor lady, and under the doctor's care and that his inquisitors refused to allow him to communicate with his family, his brother, or his employer; that he was worried about his family and wanted to get home and that that was the only reason he acknowledged his signature before the witnesses.
In this record no motive appears for the burning by appellee of the car except the assumption that he burned it for the insurance because the front wheel was grabbing and had been giving him trouble, and the alleged confession further states that he burned the car on the suggestion of a negro, one Barney Ward, an accomplice.
The testimony shows, and it is undisputed, that the plaintiff traded in a good used 1939 Plymouth and paid out the sum of $110 cash, together with the further sum of $71.70 as an insurance premium, or a total of $593.70. That was his investment in the new car.
There is an entire absence of any evidence that appellee would benefit by the fire; on the contrary, the evidence shows without any conflict that there would be a loss to him.
Section 5190 of the Mississippi Code of 1930, under Article 9, dealing with the "Fire Marshal" states, "and if he shall be of the opinion that there is evidence sufficient to charge any person with the crime of arson, or other willful burning, he shall cause such person to be arrested and charged with such offense, prosecuted and bound over to the Circuit Court, . . ." We submit that the testimony without contradiction shows that "the signing" or "the acknowledging" of the signature was not free and voluntary and there was hope of reward extended to Dallas Williams, for the reason that the testimony shows without conflict that after the alleged confession was procured Homer Edgeworth, the fire marshal, carried Dallas Williams home. Under the plain mandate of the statute it was the duty of Homer Edgeworth, the fire marshal, to have Dallas Williams arrested, but he did not do so, but carried him home just as R.L. Ferguson, the highway patrolman, promised Dallas Williams would be done. If Homer Edgeworth, the fire marshal, had sufficient evidence to have Dallas Williams arrested and sent to Forest in the first instance, why did he turn him loose after the alleged confession had been "signed" or "acknowledged?" It does not make sense that he would first arrest him and later turn him loose and take him home in his, Homer Edgeworth's, car.
Where a case is one peculiarly for the jury as depending on witnesses' credibility and weight of conflicting evidence, the Supreme Court is precluded from disturbing verdict for plaintiff as against overwhelming weight of evidence.
Faulkner v. Middleton, 186 Miss. 355, 363, 188 So. 565; Cox et al. v. Tucker et al., 133 Miss. 378, 385, 97 So. 721; Goodyear Yellow Pine Co. et al. v. Anderson, 171 Miss. 530, 157 So. 700.
Appellee owned a new Oldsmobile automobile, or practically new, since it had been in use only one week when destroyed by fire. The vehicle was insured by appellant against such loss, not for a fixed sum but only for its actual value as of the time of the loss. Appellant declined to pay, and defended on the ground that appellee himself, with the aid of an accomplice, had burned the property, and as proof on that issue appellant depended upon a so-called confession by appellee, alleged to have been made about a week after the fire.
Each of us has read the entire record, and it may be that had we been on the jury we would have voted for the defendant, and on the ground that when taken with some of the undisputed collateral facts, the confession probably stated the truth about the matter as confessions often do, even when not entirely free and voluntary. But what we would have done is not the question now. The matter for determination by us is whether there was substantial evidence to support the verdict and whether the jury acted reasonably in considering and weighing that evidence.
And at the outset there are two difficulties, although not insurmountable, in accepting the theory that appellee burned the car. First, it was practically a new car of a popular make, and it is admitted that it was worth every dollar which appellee demanded of the company for its loss. What profit was there in it to him to burn it himself? And, in the second place, since he could easily have burned it without aid, why should he have taken along a negro accomplice, as the alleged confession averred, who might, upon slight inducement, reveal the facts if such were the facts?
But, more important, there are the circumstances under which the alleged confession was obtained. Appellant was brought to the sheriff's office in an adjoining county and was there confronted with the sheriff and three others, one a deputy sheriff, the other a highway patrolman, and the other a deputy fire marshal. One of these had been called by telephone "to help secure a confession." If what was being sought was a free and voluntary confession, why such an imposing force of those armed with the authority and implements of the law? And, according to their testimony, appellee declined to make any admissions but denied all guilt, even after a considerable period of grilling. Failing to get any admissions from appellee, the sheriff, then in appellee's presence, telephoned the sheriff of the county wherein the crime was alleged to have been committed, stating that appellee was being immediately sent to be placed in the custody of the sheriff of the latter county, and appellee was thereupon delivered to the highway patrolman to be carried to the other sheriff.
Appellee begged to be taken by way of his home where the members of his family were ill, including an infant son, and in order that he might inform his family of what had happened and was happening, but this was refused. While on the way to the other county with the highway patrolmen, appellee then stated that if he were allowed to go home, he would change his statement, whereupon the patrolmen returned to the sheriff's office and appellee made and signed the confession so called upon which appellant relies, after which appellee was not only returned to his home but was there set free.
How is it then that when appellee had denied the charge and refused to make any admissions such as sought, he was ordered into the custody of the sheriff of the county wherein it was averred that the crime was committed, and yet when later he made and signed the admission or confession he was taken home and set free? It simply does not make sense, and we cannot say that the jury acted without substantial reason in throwing the supposed confession out of the window, as they evidently did, and as the jury on a previous trial had done.
Affirmed.