Opinion
No. 55327.
March 12, 1986.
Appeal from Circuit Court, Hinds County, James D. Bell, Special Judge.
Russell D. Moore, III, Moore, Royals Hartung, Jackson, for appellant.
Thomas M. Murphree, Jr., Watkins Eager, Jackson, for appellee.
En Banc.
Catherine Marsh brought suit against Home Insurance Company in the Circuit Court of the First Judicial District of Hinds County, Mississippi, seeking to recover benefits under a policy issued to the International Pizza Hut Franchise Holders Association. At the close of Marsh's case, Home Insurance Company moved for a directed verdict in its favor. The trial court granted that motion. Marsh appeals and asserts that such was error.
The rule which governs directed verdicts in cases tried before a jury is well established. In the recent case of Pittman v. Home Indemnity Co., 411 So.2d 87 (Miss. 1982), we stated:
In a motion for a directed verdict, and on a request for peremptory instruction the court considers evidence in the light most favorable to the plaintiff, disregards any evidence on the part of the defendant in conflict with that favorable to the plaintiff, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the motion for a directed verdict should be overruled and the request for a peremptory instruction should be denied.
Id. at 89. See also, White v. Hancock Bank, 477 So.2d 265, 268-269 (Miss. 1985); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss. 1983); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975). The rationale for this rule was well put in the case of Mobile and O.R. Co. v. Cox, 153 Miss. 597, 121 So. 292 (1929):
Fact-finding, which includes all material inferences and deductions which may be reasonably and logically drawn from the relevant direct facts, is a province which belongs to the jury, to be exercised by them according to the everyday experience and common observation of the twelve . . . constituting the jury — not by any one . . . judge or juror.
Id. at 598-599, 121 So. at 292.
In the instant case, Mrs. Marsh was able to establish the following facts.
Thomas Marsh, the husband of Catherine Marsh, was employed by Southeastern Pizza Huts, Inc. as manager of the Pizza Hut located near I-220 and Clinton Boulevard. Home Insurance Company issued a policy on employees of the Pizza Hut Corporation which included an endorsement stating, in toto:
The hazards against which insurance is provided a Covered Person, under this Policy, are: injuries sustained by such person as the result of a criminal act of violence during the course of: (1) robbery or an attempted robbery of a member franchise store; or (2) robbery, theft, hijacking, holdup, larceny, sniping, murder or civil disturbance while traveling on the business of the member franchise store or Policyholder.
On Wednesday, October 13, 1982, Catherine Marsh underwent surgery in a Jackson hospital. Thomas Marsh stayed with his wife both on Wednesday and Thursday nights following her surgery. At noon on Friday, October 15, 1982, while Thomas Marsh was preparing to depart his wife's hospital room, she requested that he bring her certain items, including a "home cooked" hamburger, when he returned. As Marsh left, he told his wife he would see her later.
Thomas Marsh went to work at the Pizza Hut that evening. He went over reports for the previous week and prepared a bank deposit which, pursuant to company policy was to be made by 9:00 o'clock p.m. Marsh told an assistant he (Marsh) would make the deposit of the Pizza Hut's money. Marsh was also required to keep sufficient petty cash out of the restaurant's Friday proceeds for use over the weekend.
The body of Thomas Marsh was found at his home on Saturday, October 16, 1982. He had been killed by a shotgun blast directed through a glass portion of his kitchen door.
A briefcase in which Marsh carried employer reports and other Pizza Hut property was not found by investigating officers despite a thorough search of the Marsh residence and automobile. The October 15, 9:00 o'clock deposit was neither made nor accounted for.
A list was found on a kitchen counter near Marsh's body. That list was prepared by the deceased and reflected the items to be delivered to his wife in the hospital.
At trial, a map of the Jackson-Clinton area was used as an exhibit. It was shown that a night depository of the bank used by Marsh's employer, Pizza Hut, was located between the deceased's home and the hospital where Catherine Marsh was then a patient.
It is our opinion that the facts presented and all reasonable inferences drawn therefrom presented a question of fact which should have been resolved by the jury. Either of the two provisions of the felonious assault policy could apply to the situation under consideration. Reasonable jurors might have found that Marsh was killed "during the course of [the] robbery . . . of a member franchise store." Merely because the robbery did not occur at the store, it does not necessarily follow that such was not done in the course of a robbery of the store. In the alternative, a reasonable jury might have concluded that Thomas Marsh left his place of employment, visited his home for the purpose of obtaining articles to take to his wife — all the while intending to make the daily receipts deposit on his way to the hospital. The jury might well have found that Marsh was killed "during the course of [a] robbery . . . while traveling on the business of the member franchise store."
It may be that a claim under either of the relevant provisions of the insurance policy would be subject to a defense based on Thomas Marsh's deviation from the business of his employer. However, such would be an affirmative defense and subject to proof by Home Insurance at a later stage of the trial — not one to be resolved by the trial judge at the completion of plaintiff's case.
We hold that the trial judge erred by directing a verdict for the Home Insurance Company. This case is therefore reversed and remanded for a new trial consistent with this opinion.
REVERSED AND REMANDED.
HAWKINS, SULLIVAN and ANDERSON, JJ., concur.
HAWKINS, ROBERTSON and ANDERSON, JJ., specially concur.
WALKER and ROY NOBLE LEE, P.JJ., and PRATHER, J., dissent.
PATTERSON, C.J., not participating.
Pizza Hut Franchise Holders Association is a corporation. The only way it or one of its "stores" can possibly be "robbed" is by the forceful or violent taking of its money or property from one of its employees. A member franchise store, which has money or property forcefully taken from one of its employees, has been "robbed" regardless of whether the crime occurred on its business premises or not. Therefore I must conclude a jury issue was made on the policy's first contingency, namely: that Marsh's death occurred from a robbery of a member franchise store. The policy made no requirement that the crime must occur on company property.
If it should be contended that robbery only occurs as against individuals, that it was "Marsh" who was robbed, not a "Pizza Hut store," then the first contingency under the policy could never occur, there would have been "no robbery" of the "store" if the money had been taken from Marsh when he was standing behind the cash register.
I am also of the view that no jury issue was made on the second contingency.
ROBERTSON and ANDERSON, JJ., join this opinion.
Respectfully, I dissent from the majority view.
This case involves the interpretation of the provisions of an insurance policy. The trial judge reviewed those contract provisions and, as a matter of law, held that under the facts of this case there was no evidence of coverage under the felonious assault endorsement provision of the policy. A directed verdict was granted for the defendant/appellee.
The majority opinion recites the coverage provisions, the pertinent parts of which are:
(1) Robbery or an attempted robbery of a fellow franchise store; or
(2) Robbery . . . or murder . . . while traveling on the business of the member franchise store. . . .
Mrs. Marsh places no reliance upon the first named condition, yet the majority and concurring opinions conclude that robbery of a franchise store exists whether the robbery occurs on the premises or when an employee in possession of franchise store proceeds is away from the premises. Mrs. Marsh does not contend that this was a robbery of a franchise store, neither her pleadings nor proof suggest that basis of coverage. On the contrary, Mrs. Marsh contends the second condition applies in this case to a robbery or murder while traveling on the business of the member franchise store.
At trial no evidence was presented to indicate that proceeds from the store were placed inside the briefcase. Moreover, the uncontradicted proof at trial failed to show that the murderer forcibly entered the home or ever entered the Marsh home. Allegations surrounding the absence of the briefcase from the Marsh home and car amount to mere speculation that a robbery even occurred.
In a motion to reopen, the plaintiff sought to introduce claims filed by Pizza Hut with its other insurance carrier, indicating that $880.00 was taken from Tom Marsh and that store people saw him put money in the briefcase. But the lower court judge denied the motion stating that even if the plaintiff were able to prove a robbery, absence of any proof that Mr. Marsh was traveling on business of Pizza Hut would still disqualify the plaintiff for coverage under the provision relied upon by Mrs. Marsh.
The facts undisputed show that a co-employee of Pizza Hut testified that Mr. Marsh stated that he (Mr. Marsh) would take care of the 9:00 p.m. o'clock deposit, and if he did not make the deposit that night that he would take it with him and make it on his way to the hospital early the next morning. His hours of employment that night ended at midnight. An investigative officer testified that Mrs. Marsh stated that she was looking for Mr. Marsh at noon the next day. Mrs. Marsh testified that upon her husband's leaving the hospital on Friday, he stated he would "see her later."
Company policy did not permit discretion by employees in the time of making bank deposits. The company manual dictated the time of money deposits, and untimely deposits were grounds for termination of employment by the employer.
The officers investigating were advised that a briefcase should be found at the house. No briefcase was found. Marsh was at home, and was dressed in a white shirt with designs, cut-off shorts, socks and no shoes. Beer was found on the kitchen table and a half empty can of beer was found on the TV table in the den. The TV was on.
All of these facts show that Mr. Marsh was not "traveling on the business of the member franchise store . . ." when the robbery or murder occurred. On the contrary, having left the business in the uniform of the Pizza Hut employees, he had changed into casual clothes and was relaxing at his home. Clearly, Mr. Marsh had not made the evening deposit for his store. He had deviated from that business purpose when he came home and relaxed. In fact, he was not traveling at all when he was murdered.
The above facts show as a matter of law that the evidence is insufficient to support a verdict for the plaintiff considered in the light most favorable to the plaintiff Marsh and all reasonable inferences that may be drawn therefrom.
The latest reported case setting forth the propriety of a directed verdict was White v. Hancock Bank, 477 So.2d 265 (Miss. 1985), wherein this Court stated:
The motion for a directed verdict at the conclusion of a plaintiff's case tests the legal sufficiency of the plaintiff's evidence, if no other proof be offered, to undergird an unassailable jury verdict in his favor should one be obtained. It asks the court to hold, as a matter of law, that the evidence is insufficient to support a verdict in favor of the non-movant plaintiff. Where such a request has been made, the trial court must consider the evidence before it at the time in the light most favorable to the party opposed to the motion. Weems v. American Security Insurance Co., 450 So.2d 431, 435 (Miss. 1984); King v. Dudley, 286 So.2d 814, 816 (Miss. 1973); Colson v. Sims, 254 Miss. 99, 180 So.2d 327 (1965). The plaintiff must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss. 1984); Holifield v. Nester Chevrolet Co., 207 So.2d 636, 637 (Miss. 1968). If the facts and inferences so considered point so overwhelmingly in favor of the defendant that reasonable men and women could not have arrived at a verdict for plaintiff, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded men and women in the exercise of impartial judgment might reach different conclusions, the motion should be denied. See, e.g., Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss. 1984); Weems v. American Security Life Insurance Co., 450 So.2d 431, 435 (Miss. 1984); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss. 1983); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975).
Id. at 268-69.
Applying this test to these facts the issue here was whether Tom Marsh had deviated so far from his employment that he could not be found by a jury to be "traveling" on behalf of his employer. These facts show that Marsh was neither traveling, nor on his employer's business when he was murdered. Respectfully, I dissent from the majority view and would affirm the trial court on granting of the directed verdict.
WALKER and ROY NOBLE LEE, P.JJ., join this opinion.