Opinion
No. 41836.
May 1, 1961.
1. Insurance — action founded on policy — failure to file or annex copy of policy precludes admission of any evidence thereof.
Statute precluding any evidence of writing sued on unless it or a copy of it is annexed to or filed with declaration precluded any testimony as to fact or existence of policies sued on where only insurers' memorandums of coverage specifying that they were not policies were attached where there was no allegation that policies were not actually issued or were lost or destroyed but there was showing that they were rather in hands of plaintiff's mortgagee. Sec. 1469, Code 1942.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, J.
Tate Thigpen, Picayune; Watkins Eager, Jackson, for appellants.
I. Appellants were entitled to a peremptory instruction in the court below.
A. Appellee's failure to produce the policies of insurance precludes any right of recovery. Home Ins. Co. v. Newman, 147 Miss. 237, 111 So. 455; Palmette Fire Ins. Co. v. Allen, 141 Miss. 690, 105 So. 769; Phoenix Assur. Co. v. McArthur, 116 Ala. 659, 22 So. 903; 20 Am. Jur., Evidence, Sec. 403 et seq.
B. The appellee failed to prove any actual damage as the direct result of "windstorm". Blass v. Virgin Pine Lumber Co., 50 F.2d 29; Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Camden Fire Ins. Assn. v. New Buena Vista Hotel Co., 199 Miss. 585, 24 So.2d 848; Clark v. Franklin Farmers (Wis.), 86 N.W. 549; Coyle v. Palatine Ins. Co. (Texas), 222 S.W. 973; Equitable Life Assur. Soc. of U.S. v. Askew, 194 Miss. 347, 11 So.2d 441; Hoagland v. Insurance Co. of North America, 131 Neb. 105, 267 N.W. 239; Kudella v. Newark Ins. Co. (Wis.), 89 N.W.2d 219; LaBris v. Western Nat. Ins. Co. (W. Va.), 59 S.E.2d 236; McCain v. Wade, 181 Miss. 664, 180 So. 748; Magnolia Petroleum Co. v. Williams, 228 Miss. 538, 76 So.2d 365; Pearson v. Aroostook County Patrons Mutual Fire Ins. Co., 149 Maine 313, 101 A.2d 183; Queen Ins. Co. of America v. Larson, 225 F.2d 46; Sabatier Bros. v. Scottish Union National Ins. Co. (La.), 152 So. 85; Scottish Union National Ins. Co. v. Linkenhelt, 70 Ind. App. 324, 121 N.E. 373.
C. The appellee's attempt to recover $40,000 for the alleged windstorm loss constitutes in itself fraud which precludes recovery. Baldwin v. Bankers Shippers Ins. Co. of N.Y., 222 F.2d 953; Chaachou v. American Central Ins. Co., 241 F.2d 889; Claflin v. Franklin Ins. Co., 110 U.S. 81, 28 L.Ed. 76, 3 S.Ct. 507; Claxton v. Fidelity Guaranty Fire Corp., 179 Miss. 556, 175 So. 210; Cuetara Hermanos v. Royal Exchange Assur. Co., 23 Fed. 2d 270; Springfield Fire Marine Ins. Co. v. Nix, 162 Miss. 669, 138 So. 598; Standard Ins. Co. of N.Y. v. Anderson, 227 Miss. 397, 86 So.2d 298.
II. The appellee at best was only entitled to recover nominal damages. Ammons v. Wilson Co., 176 Miss. 645, 170 So. 227; Berman v. Aetna Casualty Surety Co., 112 F. Supp. 613; Camden Fire Ins. Assn. v. New Buena Vista Hotel Co., supra; Coyle v. Palatine Ins. Co., supra; King v. Ruth, 136 Miss. 377, 101 So. 500; City of Laurel v. Bush, 238 Miss. 718, 120 So.2d 149; Loyola University v. Sun Underwriters Ins. Co., 93 F. Supp. 182, 196 F.2d 169; Masonite Corp. v. Steede, 198 Miss. 530, 23 So.2d 756; National Fire Ins. Co. of Hartford v. Slayden, 227 Miss. 285, 85 So.2d 916; Sears, Roebuck Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250; Sec. 1962, Code 1942; 25 C.J.S., Damages, Secs. 84, 85, 157.
III. Appellants are entitled to a dismissal of this cause by reason of the pendency of a prior action. Abiaca Drainage Dist. of Leflore, Holmes and Carroll Counties v. Albert Theis Sons, 185 Miss. 110, 187 So. 200; Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203; Gully v. Matthews, 179 Miss. 579, 176 So. 277; Harrison v. Illinois Cent. R. Co., 219 Miss. 401, 69 So.2d 218; Louisville N.R. Co. v. Newman, 132 Ga. 523, 64 S.E. 541; Neely v. Martin, 193 Miss. 856, 11 So.2d 435; 1 Am. Jur., Abatement Revival, Sec. 14.
IV. Appellants are unquestionably entitled to a new trial. The Great A. P. Tea Co. v. Mulholland, 226 Miss. 499, 84 So.2d 504; Mobile O.R. Co. v. Johnson, 157 Miss. 266, 165 Miss. 397, 126 So. 827, 141 So. 581; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Saenger Amusement Co. v. Murray, 128 Miss. 782, 91 So. 459; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747.
Grayson B. Keaton, Picayune; Morse Morse, Poplarville, for appellee.
I. The court below was correct in refusing to direct a verdict for appellant and in refusing to grant a peremptory instruction since there were questions for the jury to pass upon.
A. The only question here involved being whether a peremptory instruction should be granted, every material fact upon which there has been introduced substantial evidence to establish, either directly or by reasonable inference, should be viewed in favor of the plaintiff. Buffalo Ins. Co. v. Purvis, 224 Miss. 70, 79 So.2d 532.
B. A verdict cannot be directed nor a peremptory instruction granted where the questions for the jury are involved. Atlas Ins. Co. v. Lies, 70 Ga. App. 162, 27 S.E.2d 791; Clark v. State, 206 Miss. 701, 39 So.2d 783, 40 So.2d 591; Columbian Mutual Life Ins. Co. v. Green, 173 Miss. 897, 163 So. 454; Fire Ins. Co. of Pittsburgh, 289 Pa. 13, 136 A. 856; Gerhard v. Travelers Ins. Co. 246 Wis. 625, 18 N.W.2d 336; Gilmer v. Gunter (Miss.), 46 So.2d 447; Hercules Powder Co. v. Thompson, 201 Miss. 608, 29 So.2d 823; Kurn v. Fonden, 189 Miss. 739, 198 So. 727; Milner Hotels, Inc. v. Brent, 207 Miss. 892, 43 So.2d 654; Miller v. Farmers Mutual Fire Ins. Assn. of N.C., 198 N.C. 572, 152 S.E. 684; National Union Fire Ins. Co. v. Harrower, 170 Ark. 694, 280 S.W. 656; New York Underwriters Ins. Co. v. Sproles (Texas), 73 S.W.2d 857; Pennsylvania Fire Ins. Co. v. Sokes (Okla.), 166 A.L.R. 375; Trexler Lumber Co. v. Allemonnia Fire Ins. Co. of Pittsburgh, 289 Pa. 13, 136 A. 856; Anno. 166 A.L.R. 381; 29 Am. Jur., Sec. 1942 pp. 995, 996; 88 C.J.S., Sec. 259 pp. 695, 696.
II. The Court properly refused to grant an instruction on fraud where the proof was not clear and convincing and, in fact, where there was no proof at all and where estimates of contractors supported plaintiffs demand. Yazoo M.V.R. Co. v. Hubbard, 85 Miss. 480, 37 So. 1011; Griffith's Mississippi Chancery Practice, Sec. 589 p. 622.
III. The evidence, viewed in the light most favorable to the plaintiff, substantially sustained the verdict of the jury. Pacific Nat. Fire Ins. Co. v. Doby, 220 Miss. 670, 71 So.2d 449; 15 Am. Jur., Damages, pp. 523, 524; 25 C.J.S., Sec. 157 p. 805; 1 Sedgwick on Damages p. 246.
IV. The appellants failed to prove the pendency of a prior action, failed to prove that any prior action was on the same subject matter and failed to prove that any prior action was still pending, failed to prove that any prior action sought the same relief. Firestone Tire Rubber Co. v. Fried, 202 Miss. 370, 31 So.2d 116; Gartner v. Standard Oil Co., 179 Miss. 176, 175 So. 203; Louisville N.R. Co. v. Newman, 132 Ga. 523, 64 S.E. 541; 1 Am. Jur., Secs. 40, 41 pp. 44, 46; Griffith's Mississippi Chancery Practice, Secs. 341, 344 pp. 327, 330.
V. The trial court committed no error in excluding any evidence offered by the defendant. Lizana v. Edwards Motor Sales Co., 163 Miss. 266, 141 So. 295; Mississippi Central R. Co. v. Robinson, 106 Miss. 896, 64 So. 838.
VI. Plaintiff introduced in evidence copies of the insurance policy which was admissible under the pleadings but, if mistaken in this, its terms were admitted and pled by the defendant and actually need not have been performed. Home Ins. Co. v. Newman, 147 Miss. 237, 111 So. 455; Palmetto Fire Ins. Co. v. Allen, 141 Miss. 690, 105 So. 769; Safety Drivers Ins. Corp. v. Waggener, 219 Miss. 372, 68 So.2d 452; Western Cas. Sur. Co. v. Fox-Everett, Inc., 223 Miss. 388, 78 So.2d 363; Sec. 1475.5 2(a), Code 1942; Griffith's Mississippi Chancery Practice, Sec. 353 p. 339.
VII. Plaintiff proved the damages resulted from a windstorm.
VIII. There was no proof that appellee attempted to recover $40,000 for this windstorm loss against these defendants but any such demand would have been supported by the estimate of Gilky and hence could not be fraud, even if made.
IX. The evidence supported the jury verdict. Insurance Co. v. M. N. Transportation Co., 12 Wall. 194, 20 L.Ed. 378.
X. Appellants failed to prove pendency of any prior action, failed to prove any supposed prior action, failed to prove any supposed prior action demanding same relief; failed to prove any prior action was pending at the time of the trial.
There are numerous assignments of error on this appeal but it is unnecessary that we deal with all of them since the cause must necessarily be reversed and remanded for a new trial.
During the year 1954, the appellee Mohamad Khamis purchased from Philip Newman what is known as the Old Ford Hotel, a three-story structure at Picayune, Pearl River County, Mississippi, at and for the purchase price of $40,000, the sum of $10,000 of which was paid in cash, and the remainder was to be thereafter paid in monthly installments of $250 each.
On February 8, 1956, it is alleged in each of the separate suits against the eight appellant insurance companies that the said building was insured against the perils of windstorm in the sum of $5,000 by each of the said appellant insurance companies, and that on that date the building was greatly damaged by a windstorm. Some time during the year 1957 a group of suits were filed in the Circuit Court of Pearl River County against the several appellant insurance companies to recover the damage allegedly sustained on account of the said windstorm. These suits were removed upon motion of the insurance companies to the U.S. District Court for the Southern Division of Mississippi at Biloxi, Mississippi, and thereafter in August 1957, the suits were again filed in the Circuit Court of Pearl River County on the identical causes of action by the appellee Mohamad Khamis against each of the appellant insurance companies. Whereupon, the appellant insurance companies filed their separate motions on September 27, 1957, in the Circuit Court of Pearl River County, to dismiss the second group of eight cases on the ground that the former suits had been removed to the Federal Court and were then pending and undisposed of. On October 29, 1957, the appellant insurance companies obtained a certificate from the Clerk of the Federal Court at Biloxi, Mississippi, stating that the suits theretofore removed to the Federal Court were then still pending and undisposed of, but when the suits involved on the present appeal to this Court were tried in the Circuit Court of Pearl River County, Mississippi, in May 1960, the said certificate of the Clerk of the Federal Court at Biloxi of the then pendency of the cases in the Federal Court was more than two and one-half years old and was not applicable to the then status of the cases in the Circuit Court of Pearl River County in which the judgment in the instant case was rendered. No other proof was offered by the appellant insurance companies as to the fact of whether or not the cases removed to the Federal Court in 1957 were still pending and undisposed of; hence there was no error committed by the Circuit Court of Pearl River County in overruling the motion to dismiss the second group of cases filed in that court.
But it is further assigned as error on this appeal that the trial court "erred in permitting incompetent testimony for the appellee purporting to show the damages sustained * * *".
Neither the insurance policies sued on or copies thereof were annexed to or filed with the declaration in either of the eight cases which were consolidated and tried together in the Circuit Court of Pearl River County, wherein the appellee was the plaintiff and the appellants were the defendants, respectively.
Section 1469, Code of 1942, Recompiled, provides as follows: "There shall be annexed to or filed with the declaration in every case founded on an open account, a copy of the account or bill of particulars of the demand; and in actions founded on any writing, a copy of such writing, with the names of subscribing witnesses, if any, shall be annexed to or filed with the declaration; and evidence thereof shall not be given on the trial unless so annexed or filed; and the same shall constitute a part of the record of the cause."
There was a Memorandum of Insurance attached to each declaration which reads in part as follows: "THIS IS NOT A POLICY OF INSURANCE. This Memorandum of Insurance is furnished as a matter of information only; it confers no rights upon the holder hereof, and imposes no liability upon the Company. The Policy referred to herein may be endorsed, altered, transferred, assigned, cancelled and otherwise changed according to its terms."
Upon redirect examination of the appellee by his counsel, he was asked "Have you got your insurance policies?, and answered "Yes." His attorney then stated, "If the court please, we desire to introduce in evidence the memoranda of insurance furnished by the Tate Thigpen Insurance Agency to Mr. Mohamad Khamis on his building at Picayune, the subject of the suit herein." Thereupon, the attorney for the appellants made the following objection: "We object for the reason the documents referred to state on their face they are not the policies of insurance but simply a memoranda of the coverage and, further, they do not contain the terms and provisions which the original policies contain." To which the attorney for the appellee replied "They are what they furnished us. Then we move the court to require the insurance company to furnish us the complete coverage of what they cover." Thereupon, one of the defendant's counsel stated "The originals were furnished to him and went to his mortgagee." (Presumably to Philip Newman from whom the appellee purchased the building.) "BY THE COURT: There being a mortgage on the property the original policies would have to go to the parties, or concern, holding the mortgage and the plaintiff would be given memorandums of the policies and he doesn't have them. I am going to permit the memorandums as furnished by the agent to be introduced and let them be marked." Thereupon, the Memorandums of Insurance policies issued by each of the eight defendant insurance companies were introduced in evidence, but at no time were either the policies or copies thereof made an exhibit to the declarations, and neither were the policies nor copies introduced or offered in evidence. In his pleadings the appellee had requested that the insurance companies attach a copy of the policy to their answers to the declarations. However, no order to that effect was obtained from the court.
In the case of Home Insurance Company v. Newman, 147 Miss. 237, 111 So. 455, it was held that: "By the express terms of the exhibit to the bill, above set out, it provided that this certificate is furnished simply as a memorandum of said policy as it stands at the date of issue, and is given as a matter of information only, and confers no rights on the holders. Said original policy is subject to indorsement, alteration, transfer, assignment, and cancellation, without notice to the holder of this certificate. The bill does not allege that there was no policy actually issued, nor that, if issued, it was lost or destroyed; but merely states that Exhibit A contained substantially the terms of the contract. If, as a matter of fact, no policy had been issued, and if the bill had been drawn to show that the exhibit contained the terms of the real agreement, a different case would be before us. The statute requiring a copy of the writing sued upon to be filed as a part of the declaration is for a good purpose, and it enables a defendant on inspection of the pleading to determine whether the contract is a true and correct copy of the contract made, and, if so, to set up any defense arising out of its terms that may be available. The defendant is entitled to be confronted, in the pleading, with the entire contract, and not merely its substance and effect. It is not always necessary for a contract to be in writing, but the certificate made an exhibit shows that a contract was issued and that the certificate was merely a memorandum of information, and not the contract itself. We think the court was in error in not sustaining the demurrer upon the allegation of the bill before us."
In the instant case there is no allegation that there were no policies actually issued, nor that, if issued, they were lost or destroyed. Moreover, the record discloses that the policies in the instant case, according to the ruling of the trial court, were in the hands of the mortgagee, and although the mortgagee was a party to the suit, the record fails to show that he was asked to produce the policies of insurance in order that copies could be taken and made exhibits to the declarations, and in order that the policies could be introduced and made a part of the evidence in the case.
On November 12, 1956, in the case of Motors Insurance Corporation, et al. v. J.E. Holland, Jr., 229 Miss. 262, 90 So.2d 392, this Court, in its opinion, reviewed the holding in the cases of Palmetto Fire Insurance Company v. Allen, 141 Miss. 681, 690, 105 So. 482, and Home Insurance Company v. Newman, supra.
(Hn 1) From the foregoing views, it follows that no testimony was competent upon the trial of these consolidated cases to prove either the fact of the existence of the policies, the terms and provisions, or the extent of any damage or loss claimed to have been sustained thereunder, since the statute, Section 1469, Code of 1942, as construed by the decisions of this Court above-mentioned, precludes any evidence in actions founded on any writing unless the same, or copy thereof, is annexed to or filed with the declaration.
It is our view that upon a retrial of this case, the proof should disclose with more reasonable certainty the extent of the damage sustained to the property as a result of any alleged peril of windstorm on the occasion complained of than is shown by the record now before us.
We deem it unnecessary to discuss any of the other alleged errors assigned.
Reversed and remanded.
Kyle, Gillespie, McElroy and Jones, JJ., concur.