Summary
In Millers Mutual Fire Insurance Company of Texas v. King, 232 Miss. 260, 98 So.2d 662 (1957), the insured sued his insurer for fire losses sustained, and the insurer alleged that the insured burned or procured the burning of the insured property.
Summary of this case from Austin v. MontgomeryOpinion
No. 40567.
December 2, 1957.
1. Evidence — civil action — character not in issue — party not entitled to bolster his case by introducing evidence of his good character.
A party to a civil action is not entitled to bolster his case by introducing evidence of his good character even if his adversary charges him in the pleadings with committing a legal wrong or even an act for which he might be subject to criminal prosecution.
2. Evidence — civil action — character or reputation — inadmissible where character or reputation of party is not put directly in issue.
In action on fire policies for loss by fire of building supplies and materials, wherein insurer's defenses were that insured had burned the property in question or caused same to be burned, character of insured was not put directly in issue and admission over objections of testimony that general reputation of insured in community in which he lived was good and that his general reputation for honesty and integrity was good, was prejudicial and reversible error.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Watkins Eager, Jackson, for appellants.
I. Appellee's wilful concealment of material facts constituted a policy violation which defeats his right of recovery. Albert v. Doullut Ewin, 180 Miss. 626, 178 So. 312; Anderson v. American Foreign Ins. Co. (Miss.), 86 So.2d 303; Bergeron v. Employers' Fire Ins. Co., 115 Cal.App. 672, 2 P.2d 453; Claflin v. Commonwealth Ins. Co., 110 U.S. 81, 28 L.Ed. 76, 3 S.Ct. 507; Claxton v. Fidelity Guaranty Fire Corp., 179 Miss. 546, 175 So. 210; Columbus Greenville RR. Co. v. Lee, 149 Miss. 543, 115 So. 782; Connecticut Fire Ins. Co. v. George, 153 P. 116; Ervin v. Cannon Mills Co. (N.C.), 64 S.E.2d 431; Graham v. Roderick (Wash.), 202 P.2d 253; Hallas v. North River Ins. Co. of N.Y., 107 N.Y.S.2d 359; Hart v. Mechanics Traders Ins. Co. of Hartford, Conn. (La.), 46 F. Supp. 166; Hickman v. London Assurance Corp., 184 Cal. 524, 195 P. 48, 18 A.L.R. 1742; Home Ins. Co. v. Cavin, 162 Miss. 1, 137 So. 49; B. Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807; Lamb v. Woodry, 154 Oregon 30, 58 P.2d 1257; Louisville N. RR. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 908; Mobile O. RR. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Mobile O. RR. Co. v. Johnson, 157 Miss. 266, 126 So. 827; New York Life Ins. Co. v. Burris, 174 Miss. 674, 165 So. 116; O'Neil v. Travelers' Fire Ins. Co., 48 N.Y.S.2d 99; Phoenix Ins. Co. v. Summerfield, 70 Miss. 834, 13 So. 254; Roberto v. Hartford Fire Ins. Co., 177 F.2d 811; Robinson v. National Automobile Casualty Co., 282 P.2d 930; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Standard Ins. Co. of N.Y. v. Anderson (Miss.), 86 So.2d 298; State Mutual, Etc., Ins. Co. v. Watkins, 181 Miss. 859, 180 So. 78; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330; Young v. Kuehnoel (Wash.), 309 P.2d 377; 20 Am. Jur., Evidence, Sec. 1187; 58 Am. Jur., Witnesses, Sec. 698; 45 C.J.S., Insurance, p. 1256.
II. Unquestionably, the verdict of the jury is contrary to the overwhelming weight of the evidence. Albert v. Doullut Ewin, supra; American Alliance Ins. Co. v. Alford, 229 Miss. 855, 92 So.2d 191; Deposit Guaranty Bank Tr. Co. v. United States, 48 F. Supp. 369; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Louisville N. RR. Co. v. Whisenant, supra; Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311; Teche Lines v. Bounds, 182 Miss. 638, 178 So. 747; Tombigbee Elec. Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Williams v. Cambridge Mutual Fire Ins. Co., 230 F.2d 293; Wright v. Gordon's Transport, 162 F.2d 590; Yazoo M.V. RR. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80.
III. The Court below erred in permitting appellee to present evidence as to his general reputation. Graves v. Johnson, 179 Miss. 465, 176 So. 256; Koonts v. Farmers Mutual Ins. Assn. of Van Buren County, 235 Iowa 87, 16 N.W.2d 20; Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782; Northern Assurance Co. v. Griffin, 236 Ky. 296, 33 S.W.2d 7; Quinn v. Louisville N. RR. Co., 144 Miss. 505, 110 So. 436; 20 Am. Jur., Evidence, Sec. 319; 32 C.J.S., Evidence, Secs. 423, 426.
IV. The Court below erred in permitting appellee to place an independent adjuster on the witness stand as an adverse witness. Leinkauf Strauss v. Brinker, 62 Miss. 255; Smith v. Federal Crop Ins. Corp., 214 Miss. 55, 58 So.2d 95; Wagley v. Colonial Baking Co. (Miss.), 45 So.2d 717; Sec. 1710, Code 1942.
V. The Court below erred in excluding portions of the testimony of the Assistant Fire Chief tending to show arson. Alabama Great Southern RR. Co. v. Johnson, 140 F.2d 968; 32 C.J.S., Evidence, Secs. 587-90.
VI. The Court below erred in refusing appellants' instructions whereby the jury was told to find for appellants if a preponderance of the evidence disclosed that the appellee had willfully concealed or misrepresented certain specified material facts or circumstances, to wit: (a) whether he was alone in the building from 11:45 a.m. until he left, (b) concerning the sale of plywood at below wholesale prices, (c) concerning any alleged defect in the electrical wiring, (d) concerning his presence in the warehouse after 11:45 a.m., and (e) concerning the presence of Barker in the building. See authorities cited under Point I.
Morse Morse, Jackson, for appellee.
I. This case was one for the jury.
II. The interrogation of Theo D. Sullivan conducted by Mr. Watkins was factual and to be determined by the jury.
III. King did not willfully conceal such facts from the insurer that would void the policy.
Collation of authorities: Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Claxton v. Fidelity Guaranty Fire Corp., 179 Miss. 556, 175 So. 210; Columbia Mutual Life Ins. Co. v. Harrison, 170 Miss. 121, 154 So. 722; Continental Ins. Co. v. Thrash, 223 Miss. 344, 78 So.2d 344; Finance Co. v. Myers, 169 Miss. 407, 152 So. 834; Georgia Life Ins. Co. v. Friedman, 105 Miss. 789, 63 So. 214; Insurance Co. of Ga. v. Fitzgerald, 164 Miss. 279, 144 So. 684; Kern v. Fondren, 189 Miss. 739, 198 So. 729; Lilitz Mutual Ins. Co. v. Miller, 210 Miss. 548, 50 So.2d 221; Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 76 So.2d 365; Merchants Fire Assurance Co. v. Cantrell, 220 Miss. 877, 72 So.2d 143; New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109; Osborne v. Thomas, 221 Miss. 682, 74 So.2d 757; Parker v. Laubenheimer, 215 Miss. 373, 60 So.2d 815; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Railroad Trainmen v. Walker, 165 Miss. 698, 147 So. 455; Ruffin v. Schwabacher, 156 Miss. 326, 126 So. 14; Standard Ins. Co. v. Anderson, 227 Miss. 397, 86 So.2d 298; St. Paul v. Stanten, 200 Miss. 197, 26 So.2d 538; Taggert v. Peterson, 182 Miss. 82, 181 So. 137; Truckers Exchange v. Conroy, 190 Miss. 242, 199 So. 301; Willoughby v. Pope, 101 Miss. 808, 58 So. 705; 46 C.J.S., Secs. 1355, 1359, 1372 pp. 524, 567, 609-12; Appleman on Insurance Law Practice, Secs. 3581-98, 12411 pp. 251-52; Mississippi Digest, Appeal and Error, Secs. 999, 1002.
IV. No reversible error was committed in plaintiff calling Theo D. Sullivan as an adverse witness. Hartford Fire Ins. Co. v. Clark, 154 Miss. 418, 122 So. 551; Ruffin v. Schwabacher, supra; Saucier v. Life Cas. Co. of Tenn., 189 Miss. 693, 198 So. 625; Standard Life Ins. Co. v. Foster, 210 Miss. 242, 49 So.2d 391; Wagley v. Colonial Bakery, 203 Miss. 815, 46 So.2d 925; Sec. 5702, Code 1942; 97 C.J.S., Secs. 248, 250 pp. 728, 737; Mississippi Digest, Appeal and Error, 1051(1).
V. It was not reversible error to show the good reputation of Earl King, in the light of the pleading. Baggett v. Alabama, 250 Ala. 413, 34 So.2d 688; Grant v. Pendley, 39 S.W. 596, 78 A.L.R. 638; Graves v. Johnson, 179 Miss. 465, 176 So. 262; Harris v. Simms, 155 Miss. 207, 124 So. 325; Leinkauf Strauss v. Brinker, 62 Miss. 255; Sec. 1530, Code 1942; 32 C.J.S., Secs. 423-25 pp. 59-60; McElroy on Evidence, Sec. 16.
VI. It was not reversible error to exclude the insurance companies' experiment made by Capt. Taylor, and it was not reversible error for Capt. Taylor, of the Jackson Fire Department, Mr. Singletary, as Deputy Fire Marshal, and Mr. Busby to each say they did not charge King with arson. Moss Tie Co. v. Bank of Decatur (Miss.), 97 So. 417; McElroy on Evidence, Sec. 98 p. 352.
VII. It was not reversible error to permit witness Cope to testify.
VIII. The Court committed no error in refusing appellants' requested instructions. Bonelli v. Brauchiere, 127 Miss. 556, 90 So. 245; Hines v. McCullers, 121 Miss. 666, 83 So. 734; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Illinois Cent. RR. Co. v. Redmond, 119 Miss. 765, 81 So. 115; McLeod v. Anderson Merc. Co., 105 Miss. 498, 62 So. 274; Mississippi Cent. RR. Co. v. Hardy, 88 Miss. 732, 41 So. 505; National Life Acc. Ins. Co. v. Davant, 110 Miss. 196, 70 So. 83; Phoenix Ins. Co. v. Summerfield, 70 Miss. 827, 13 So. 253; Poetera v. Brookhaven, 95 Miss. 774, 49 So. 617; Sardis Delta RR. v. McCoy, 81 Miss. 391, 37 So. 706; Yazoo M.V. RR. Co. v. Kelly, 98 Miss. 367, 53 So. 779; Yazoo M.V. RR. Co. v. Walls, 110 Miss. 256, 70 So. 349; Yazoo M.V. RR. Co. v. Williams, 87 Miss. 344, 39 So. 489; Vol. II, Alexander's Miss. Jury Instructions, Sec. 2733 p. 14.
Earl O. King, doing business as King Building and Supply Company, appellee, brought suit against Middlesex Mutual Fire Insurance Company and Millers Mutual Fire Insurance Company of Texas, appellants, for loss by fire of building supplies and materials in the amount of $18,050.72. The suits were consolidated and the jury returned a verdict for the amount sued for, from which judgment the appellants appeal.
The record in this case is voluminous and we will not detail the evidence. After a careful examination of the record we are of the opinion that the appellee's evidence was sufficient to withstand the requested peremptory instruction, and that the issues were for the determination of the jury. The appellants' defenses were, among other things, that the appellee burned the property in question, or caused same to be burned; and that the appellee had wilfully concealed material facts concerning the insurance and the subject thereof and sworn falsely thereto.
(Hn 1) In the third assignment of error, the appelants contend that the trial Court erred in admitting over appellants' objections testimony that the genreal reputation of the appellee in the Community in which he lived was good and that his general reputation for honesty and integrity was good. It is a general rule of law, adhered to in all but a few jurisdictions, that a party to a civil action is not entitled to bolster his case by introducing evidence of his good character even if his adversary charges him in the pleadings with committing a legal wrong, or even an act for which he might be subjected to criminal prosecution, such as conspiracy, embezzlement, fraud, incendiarism. 32 C.J.S., Evidence, Secs. 423-426; 20 Am. Jur., Evidence, Sec. 319; Anno., 78 A.L.R. 643; Quinn v. L. N.R.R. Co., 144 Miss. 505, 110 So. 436; Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782; Koonts v. Farmers Mutual Insurance Assn. of Van Buren County, 235 Iowa 87, 16 N.W.2d 20; Northern Assurance Co., et al. v. Griffin, 236 Ky. 296, 33 S.W.2d 7; Wood v. General Insurance Co. of America, 229 Mo. App. 296, 77 S.W.2d 167.
This Court is committed to the general rule above stated. In Leinkouf v. Brinker, 62 Miss. 255, this Court said:
". . . . it is plain that in civil proceedings where the nature of the action itself does not involve the general character of the party, evidence as to that character cannot be offered to contradict an imputation of dishonesty or even of fraud. The transaction presented in any ordinary civil case must depend upon its circumstances, and not upon the character of the parties. In such case, no matter how serious a moral delinquency may be involved in a fact or how much the establishment of that fact may affect a party's reputation, he cannot invoke the aid of his previous character to disprove the fact."
In Graves v. Johnston, 179 Miss. 465, 176 So. 256, this Court held that it is the general rule in an ordinary civil case that parties may not support their position by offering testimony as to their good character or reputation and it is only when good character or reputation is the issue, such as in slander, false imprisonment and like causes that such evidence is admissible, citing 10 R.C.L. 947, et seq.; Leinkouf v. Brinker, supra; 52 Am. Dec. 183; Harris v. Sims, 155 Miss. 207, 124 So. 325; Pounders v. Day, 151 Miss. 436, 439; 118 So. 298.
Appellee does not dispute the general rule, nor that Mississippi adheres thereto, but relies upon the exception that evidence of good character may be admissible on the ground that character is an issue because of the nature of the action or of the pleadings and evidence. 32 C.J.S., Evidence, Sec. 424.
In this connection, appellee contends that since the pleadings charged him with the crime of arson, his character was put directly in issue. We do not agree with this contention. Appellee's character was not directly in issue in the case, although there is no doubt that an adverse judgment would have seriously reflected upon his character.
"The great majority of the courts are of the opinion that the character of a party is put in issue, in civil actions, only by the nature of such actions, as for seduction, criminal conversation, libel and slander, malicious prosecution, and the like — actions in which character may be the very matter in issue in determining the right to and the extent of recovery. Consequently this group holds that, regardless of the baseness of the criminal acts or moral depravity on which the charge of fraud is based in a civil action, a party may not put in evidence the fact of his previous good character, merely to rebut the charges or imputations of fraud. It has generally been held that the admission of such evidence is ground for reversal." Anno., 78 A.L.R., p. 644.
(Hn 2) This was a close case on the facts and we are of the opinion that the admission of this evidence was prejudicial and reversible error.
Reversed and remanded.
Roberds, P.J., and Hall, Kyle and Gillespie, JJ., concur.