Employers Mut. Cas. Co. v. Poe

• Decision Date: 07 November 1966
• Docket Number: No. 44071,44071
• Parties: EMPLOYERS MUTUAL CASUALTY COMPANY v. J. M. POE.
• Court: Mississippi Supreme Court

Page 541

191 So.2d 541

EMPLOYERS MUTUAL CASUALTY COMPANY v. J. M. POE.

No. 44071.

Supreme Court of Mississippi.

Nov. 7, 1966.

Davidson & Beach, Jackson, for appellant.

James D. Dobbs, Ackerman, Cason Rankin, Tupelo, W. D. Coleman, Jackson, for appellee.

BRADY, Justice.

This is an appeal from a judgment of the Circuit Court of Lee County where the cause was tried by agreement without a jury. Judgment in the sum of $3,000 was entered by the circuit court, together with interest at the rate of six percent per annum and court costs in the sum of $130.55.

The facts involved in this appeal are conceded by appellee in his brief to have been accurately and fully set forth in appellant's brief and, in view of the fact that there was a stipulation of the parties also upon which the granishment trial was heard, the appellee did not feel called upon to repeat the pertinent facts. The stipulation of the parties agreed upon is in accord with the facts as revealed in the record. It was stipulated between the parties that the judgment was entered in the Circuit Court of Lee County on or about November 18, 1961, in favor of the appellee, J. M. Poe, against John Fletcher Tucker, Jr., in the sum of $3,000, with interest at the rate of six percent, for the wrongful death of plaintiff's intestate son, J. S. Poe, which was the result of an automobile accident in Chickasaw County, Mississippi, on or about November 20, 1959. The deceased, J. S. Poe, was an occupant of a 1952 Ford automobile which belonged to the Tupelo Auto Sales, a co-partnership, which was being driven by an employee, John Fletcher Tucker, Jr. The automobile in question was held for sale in the course of its usual business by the Tupelo Auto Sales.

The stipulation further agrees that John Fletcher Tucker, Jr., died intestate on or about March 2, 1962, and that the said judgment was thereafter revived against his heirs at law by the Circuit Court of Lee County, Mississippi, on April 13, 1964. This judgment was properly enrolled on the judgment rolls in the office of the Circuit Clerk of Lee County.

It was agreed between the litigants in this cause that there was in force and effect on November 20, 1959, the date of the accident, a policy of insurance or a contract of indemnity against liability, being policy number 4165185. Under this policy Employers Mutual Casualty Company, garnishee-defendant below, was obligated to pay on behalf of the Tupelo Auto Sales all sums which Tupelo Auto Sales or any other person by the terms and provisions of said policy became legally obligated to pay as damages because of bodily injury, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the use of the 1952 Ford automobile involved in the accident.

It was further agreed between the litigants that the judgment debtor, John Fletcher Tucker, Jr., the employee of Tupelo Auto Sales, took the said automobile into his custody from the used car lot of Tupelo Auto Sales on West Main Street in the city of Tupelo, Lee County, by and with the consent and permission of Tupelo Auto Sales. It was additionally stipulated:

However, it was the understanding at the time this permission was granted by the said employer to John Fletcher Tucker, Jr., that he would use said automobile only for the purpose of transportation to his home in Saltillo, Mississippi, about two miles north of Tupelo, Mississippi, and return to work therein the following morning.

The stipulation further provides that the said John Fletcher Tucker, Jr., was not en route home or returning therefore at the time the accident occurred which resulted in the death of J. S. Poe. The agreement specifies that the accident occurred approximately seventeen miles south of Tupelo, Mississippi, on Highway 45, and about two miles north of Okolona, Mississippi, in Chickasaw County, Mississippi, at a time when the said John Fletcher Tucker, Jr., was not acting within the scope of his employment nor in the furtherance of the business of his employer, Tupelo Auto Sales.

The stipulation likewise provides:

That a Writ of Garnishment has been issued and served upon Employers Mutual Casualty Company, Garnishee-Defendant, based upon a Suggestion filed in this Cause alleging that Employers Mutual Casualty Company, Garnishee-Defendant, by reason of the aforesaid policy or contract of indemnity against liability is indebted to the heirs-at-law of the said John Fletcher Tucker, Jr., deceased, for the payment of said judgment and costs, which is denied by the said Employers Mutual Casualty Company * * *.

It was expressly stipulated that, although the original policy number 4165185 was not available to the parties, the attached printed policy form, which was the standard garage liability policy written by Employers Mutual Casualty Company on the date of issuance of said policy, contained the identical terms of the policy issued to Tupelo Auto Sales as above set forth. Although the policy does not reveal the exact amount of coverage, it provides a maximum limit of liability of $5,000 per person for personal injury or death.

The stipulation also provided that the garnishment proceeding could be heard by the circuit judge without jury in term time or in vacation. It was finally agreed that the stipulation should in nowise preclude either party thereto from introduction of any and all other admissible evidence desired by either party in the establishment or defense of the liability of Employers Mutual Casualty Company.

It should be noted that the original suit by the plaintiff, J. M. Poe, was against George Sheffield, Hoyt Sheffield, and James Sheffield, d/b/a Tupelo Auto Sales, and John Fletcher Tucker, Jr.; that upon motion of the defendants a peremptory instruction was granted to the defendants, George Sheffield, Hoyt Sheffield, and James Sheffield, and the case proceeded to the jury against the defendant, John Fletcher Tucker, Jr., only, against whom the $3,000 verdict was rendered.

Defendant's and plaintiff's motions for a new trial were overruled. No appeal was taken from said judgment and on March 2, 1962, John Fletcher Tucker, Jr., died, leaving his widow, Mrs. Martha Whitaker Tucker, and minor children, John F. Tucker, and Sarah Jane Tucker. No administration was had upon the estate. Scire facias was issued to the above named heirs of the said John Fletcher Tucker, Jr., commanding them to appear at the regular term of the Circuit Court of Lee County, to show cause, if any, why said judgment should not be revived against them. The record discloses that no answer was made with response to the scire facias and that a default judgment was taken thereon. Thereby the judgment was revived as to the estate, real, personal and mixed, of the deceased. Upon this judgment the suggestion for writ of garnishment was issued. Upon answer and contest thereof, trial was had and judgment was entered thereon in the sum of $3,670.55 against appellant, from which judgment this case was appealed.

There are but two errors assigned for consideration by this Court, the first being that the lower court erred in entering judgment in the garnishment proceeding upon a dormant judgment which had not properly or effectively been revived, and second, that the judgment of the lower court is contrary to the law and the evidence. Since the disposition of the second error assigned will dispose of the rights of the litigants in this cause, it is unnecessary for this Court to consider, and it does not consider, the first error assigned.

In determining whether or not the judgment of the lower court is contrary to law and evidence, it should be noted that the insurance policy issued by the appellant to Tupelo Auto Sales was a garage liability policy. Although the original policy was lost or destroyed and could not be introduced at the trial of the garnishment proceeding, nevertheless, by agreement of the parties, a blank specimen of the policy was introduced in lieu of the original policy, and it is from this agreed copy of the policy that our conclusions are based. It contains the usual insuring agreement with respect to bodily injury liability whereby the appellant agreed to pay on behalf of the insured all sums which the insured should become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards thereinafter defined.

It can be safely stated that appellant owes nothing under its policy unless appellee has shown that John Fletcher Tucker, Jr. was an insured within the meaning of the policy at the time of the accident. The policy provides, under 'Definition of Hazards,' as follows:

(A)nd the ownership, maintenance or use of any automobile in connection with the above defined operations, and the occasional use for other business purposes and the use for non-business purposes of (1) any automobile owned by or in charge of the named insured and used principally in the above defined operations * * *.

The record...