Cooper v. State Farm Fire & Cas. Co.
| Decision Date | 30 May 1990 |
| Docket Number | Nos. 07-58765,07-59412,s. 07-58765 |
| Citation | 568 So.2d 687 |
| Parties | Jackie R. COOPER and Faye B. Cooper v. STATE FARM FIRE & CASUALTY COMPANY (Two Cases). |
| Court | Mississippi Supreme Court |
C. Collier Carlton, Jr., Anthony L. Farese, John B. Riemenschneider, Farese Farese & Farese Firm, Ashland, for appellants.
Guy T. Gillespie, III, Robert H. Faulks, Holcomb Dunbar Connell Chaffin & Willard Firm, Oxford, for appellee.
En Banc.
I.
These appeals arise from a civil arson case in which the jury found for the insurer. The first appeal is taken by Jackie and Faye Cooper, Plaintiffs below. They appeal from the denial of their Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for New Trial entered February 6, 1987, assigning four errors. State Farm Fire & Casualty Company, the Defendant below, cross appealed from the denial of sanctions under Rule 56(h).
The second appeal is taken by State Farm Fire & Casualty Company (State Farm) from an adverse ruling on their Motion for Rule 37 Expenses.
We find that the trial court erred in admitting certain hearsay testimony offered by State Farm under the guise of impeachment in violation of Rules 607 and 801 M.R.E.. Therefore, we reverse and remand for a new trial.
Jackie and Faye Cooper owned a home and approximately 30 acres of land in Iuka Tishomingo County, Mississippi. Their home was insured by State Farm.
The State Farm policy initially provided the following coverage: $39,000.00 on the dwelling, $19,500.00 contents, $7,800.00 loss of use, $1,000.00 for television, stereo, tapes and records, $1,500.00 for jewelry and furs, $1,500.00 for guns, $500.00 for tools and $3,350.00 for cameras, silver and musical instruments. The policy contained an inflationary clause which automatically raised the premiums and amount of coverage. As a result of the inflationary clause, on May 3, 1985 the coverage on the dwelling had risen to $44,400.00, contents was increased to $22,200.00 and loss of use had risen to $8,880.00.
On the evening of Friday, May 3, 1985, while Jackie and Faye Cooper were on vacation in Jackson, Mississippi, a loud noise was heard in the vicinity of the Cooper's residence in Iuka. A neighbor, Nancy Wilson, heard the noise and saw the Cooper's home on fire. She reported the fire to the Tishomingo County Sheriff's Department.
The Fire Chief of Iuka in May of 1985 was Floyd Whitaker. He was notified of the fire before midnight on May 3, 1985 and arrived at the scene of the fire, the Cooper's home, seven (7) or eight (8) minutes later. On arrival he noted that the inside of the house was engulfed with flames, although the roof had not burned through. He also noticed an unburned couch cushion on the front lawn, 30 or 40 feet from the front of the house.
The Cooper's home was totally destroyed by the fire, despite the 500 gallons of water used in an attempt to save the home. The Cooper's were notified of the fire on Saturday morning, May 4, 1985 by their son, Gerald. They immediately returned to Iuka, leaving the camper-trailer they were using in Jackson. They arrived mid-afternoon to find only the chimney standing.
The Cooper's reported the fire to their State Farm Agent on Monday, May 6, 1985. They were given Proof of Loss forms and inventory sheets to fill out and return. The inventory sheets showing a total loss of $34,659.56 was filed June 10, 1985. The Proof of Loss form was filed June 11, 1985.
State Farm conducted an intense investigation of the fire and the Coopers. They determined that the fire was incendiary and probably intentionally set. State Farm denied the Cooper's claim on September 24, 1985 for the following reasons: (1) "the fire resulted from acts chargeable to the named insureds in the policy." (2) "concealments and misrepresentations of material matters by the Coopers during the investigation;" and (3) "there may be other additional facts upon which the company could rely which are not known at this time for denying the claim."
The Coopers filed suit against State Farm in the Circuit Court of Tishomingo County, Mississippi on November 20, 1985. State Farm filed its Answer and Defenses, as well as their first set of interrogatories, request for production of documents and request for admissions on December 19, 1985. The Coopers answered on January 16, 1986. Thereafter, on May 2, 1986, the Coopers filed a Motion to File an Amended Complaint to add punitive damages and a Motion for Partial Summary Judgment on the issue of liability. State Farm filed responses to these motions.
A pre-trial conference was held September 16, 1986, resulting in a Pre-Trial Order. The Coopers' Motion for Summary Judgment was denied September 23, 1986. By Court Order filed September 26, 1986 the Coopers were permitted to amend their complaint. The Amended complaint was filed September 26, 1986. State Farm filed its answer and defenses to the amended complaint October 1, 1986. Trial was set for Monday, December 1, 1986 and estimated to last three (3) days.
State Farm filed a Motion for Partial Summary Judgment on the issue of punitive damages on October 31, 1986, to which the Coopers responded on November 26, 1986. On the day of trial, December 1, 1986, State Farm filed a Motion in Limine seeking to limit comments on the fact that the Coopers had not been indicted or charged with arson in connection with their house fire. The Coopers filed a Motion in Limine seeking to limit testimony regarding telephone calls to agents of State Farm from Faye Cooper's sister, Susie Arnett, on December 2, 1986.
The jury returned a verdict in favor of State Farm on December 4, 1986. The Coopers filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial on December 9, 1986. State Farm filed a Motion for Rule 37 Expenses on December 13, 1986. The trial court entered its Order February 6, 1987 overruling the Coopers motion and taking State Farm's motion under advisement for 45 days. The Coopers filed their Notice of Appeal. State Farm's Motion for Rule 37 Expenses was subsequently overruled and notice of appeal was timely filed.
We now address the first assignment of error on direct appeal which is dispositive of this case and requires reversal.
II.
The Trial Court Erred in Three Regards Relative to Certain testimony of Witnesses Arnett, McClain, Brown and Lomenick. The Trial Court Erred in Failing to Sustain the Coopers' Motion in Limine. The Trial Court Erred in Admitting Certain Testimony Into Evidence. The Trial Court Erred in Failing to Grant a Proper Instruction as to the Testimony.
The facts which give rise to this assignment follow. Susie Arnett, sister of Faye Cooper, was listed as a possible defense (fact) witness on the issue of liability in the Pre-Trial Order, as were Harold Lomenick, Harvey L. McClain and Donnie Brown, employees of State Farm. State Farm indicated to the jury in opening statement that testimony regarding statements made by Faye Cooper and related to State Farm agents by Faye Cooper's sister would be forthcoming. The Coopers filed their Motion in Limine the following day, December 2, 1986.
On the third day of trial, December 3, 1986, State Farm called Susie Arnett as a witness. Direct examination by State Farm consisted entirely of questions and denials of Arnett on the following: (1) that Faye Cooper had told her they (the Coopers) had their house burned; (2) that they had burned their own house; (3) that they knew in advance that their house would be burned or how they "went about having their house burned"; (4) that she made a telephone call to State Farm Agents Donnie Brown or Harold Lomenick and told them of Faye Cooper's bragging about burning the house and what they were going to do with the money, although Arnett did admit talking to Brown and Lomenick in relation to her own insurance.
State Farm subsequently called its investigator in this case, Harvey McClain, and agents Donnie Brown and Harold Lomenick as witnesses. Brown testified, over objection, that he received a telephone call July 1, 1985 from a female identifying herself as Faye Cooper's sister who told him she was tired of hearing the Coopers brag about how they had burned their house and how they were going to spend State Farm's money. At this point in the conversation Lomenick entered the room, got on the line with Brown and Brown got out of the conversation. Brown testified that he did not know who had called.
Lomenick verified Brown's testimony regarding the female caller. Lomenick testified that he got the lady's telephone number, verified from the telephone book that the number was registered to William Arnett and reported this information to the investigator, McClain. Lomenick testified to receiving another telephone call from the same unknown lady ten (10) days prior to trial and while he did not know Susie Arnett, he had heard Arnett's voice during the trial and it sounded similar to the telephone voice.
McClain testified that he learned of the telephone call from Lomenick and called the number given to him in July or September. The person who answered his call identified herself as Mrs. Susie Arnett, acknowledged that she had talked with Brown and Lomenick regarding the fire and requested him to go ahead and pay the Coopers. McClain testified that he had never met Arnett and that he could have been talking to anyone.
This assignment deals with impeachment of a party's own witness with a prior inconsistent statement. Impeachment is governed by Rule 607 of the Mississippi Rules of Evidence, adopted January 1, 1986. Rule 607, which abolished the voucher rule in this state for both civil and criminal cases, reads:
The credibility of a witness may be attacked by any party, including the party calling him.
Before a party calling a witness may impeach that witness, the proper predicate must be laid. See Carlisle v. State, 348...
To continue reading
Request your trial
-
Hansen v. State, 89-DP-0823
...534 So.2d 175, 179 (Miss.1988), but, even then, not by tendering them as substantive evidence. See, e.g., Cooper v. State Farm Fire & Casualty Co., 568 So.2d 687, 691 (Miss.1990); Brown v. State, 556 So.2d 338, 340-41 (Miss.1990); Lanier v. State, 533 So.2d at 488, 494; but see, Rule 801(d)......
-
Wilkins v. State
...The trouble with this rationale is first, as perceptively noted in the dissenting opinion in Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 700 (Miss.1990) (Robertson, J., dissenting), it makes admissibility of evidence depend on what is in the attorney's head, a rather difficult unde......
-
Southwest Mississippi Regional Medical Center v. Lawrence
...Co., 606 So.2d 122, 127 (Miss.1992); Lamb Const. Co. v. Town of Renova, 573 So.2d 1378, 1384 (Miss.1990); Cooper v. State Farm Fire & Casualty Co., 568 So.2d 687, 692 (Miss.1990). The cases decided by this Court relating to Rule 56(h) are not instructive in the case sub judice. In Brown, su......
-
Wyssbrod v. Wittjen
...imposition of sanctions for abuse of discretion. Kinard v. Morgan, 679 So.2d 623, 625 (Miss.1996) (citing Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990); Brown v. Arlen Management Corp., 663 F.2d 575, 580 (5th Cir.1981)). In the absence of a "`definite and firm convict......