Evans v. Progressive Cas. Ins. Co.

• Citation: 300 So.2d 149
• Decision Date: 09 September 1974
• Docket Number: No. 47673,47673
• Parties: Andrew EVANS et al. v. PROGRESSIVE CASUALTY INSURANCE COMPANY et al.
• Court: United States State Supreme Court of Mississippi

Page 149

300 So.2d 149

Andrew EVANS et al. v. PROGRESSIVE CASUALTY INSURANCE COMPANY et al.

No. 47673.

Supreme Court of Mississippi.

Sept. 9, 1974.

Bernard W. N. Chill, Marlane E. Chill, Jackson, McRae & Baker, Pascagoula, Luther M. Dove, Jr., Jackson, for appellants.

Watkins & Eager, Jackson, David Miller Schneider, Wayne Clarence Dabb, Jr., Cleveland, Ohio, for appellees.

BROOM, Justice:

Appellants filed a class action against appellees in the Chancery Court of the First Judicial District of Hinds County, Mississippi. From a decree dismissing the bill for want of jurisdiction, this appeal was prosecuted. We affirm.

The decisive issue is: Did the chancellor err by ruling that appellants cannot maintain the suit as a class action cognizable under the equity jurisdiction of this state?

In their bill of complaint, the four individual appellants sought money damages from the appellees. The following averments are contained in the bill exhibited by appellants. Progressive is a holding corporation owning all of the capital stock of the other appellees, Casualty and Budget. The three corporations have common directors, common management, and operate at the same place of business. Casualty is engaged in the business of underwriting through licensed agents sub-standard and excess automobile liability and physical damage insurance coverage. Budget finances insurance premiums charged by Casualty. Also in the bill is an averment that the three appellees, all of whom are Ohio corporations, conspired among themselves and with their agents to charge usurious interest in excess of twenty percent per annum in violation of Mississippi Code Annotated section 75-17-1 (1972), and that therefore all principal and interest should be forfeited. Each appellant sought a judgment for all amounts of principal and interest paid by him.

By their bill appellants asserted a class action purportedly representing all policyholders in Mississippi whose policies were issued by Casualty, and whose insurance premiums were financed by Budget at alleged usurious rates of interest. Appellees filed separate motions (which the chancellor sustained) to dismiss for lack of jurisdiction of the subject matter.

All four appellants were insured under separate and distinct contracts (automobile insurance policies) issued by Casualty. Each of the policies differed as to date of issuance, amount of coverage, premium charged, and amount of cash paid down on each premium. Each appellant entered into a separate premium finance contract with Budget, who financed for each appellant a different portion of the respective premiums at different times for differing rates of interest.

No Mississippi case has been cited as authority that mere assertion of a class action, without equitable features, is an independent ground for equity jurisdiction. Tribette v. Illinois Cent. R.R., 70 Miss. 182, 12 So. 32 (1892). Several decisions of this Court are to the effect that in order for a class action to be within the jurisdiction of a chancery court in this state, the suit must involve a matter of equity cognizance. Barrett v. Coullet, 263 So.2d 764 (Miss.1972); Mississippi Power Co. v. Ballard, 166 Miss. 631, 146 So. 874 (1933); Henry v. Donovan, 148 Miss. 278, 114 So. 482 (1927); Newell v. Illinois Cent. R.R., 106 Miss. 182, 63 So. 351 (1913); Scottish Union & Nat'l Ins. Co. v. Warren-Gee Lbr. Co., 103 Miss. 816, 60 So. 1010 (1913); Newton Oil & Mfg. Co. v. Sessum, 102 Miss. 181, 59 So. 9 (1912); Cumberland Tel. & Tele. Co. v. Williamson, 101 Miss. 1, 57 So. 559 (1912).

In Tribette, supra, a number of property owners, by separate actions in circuit court, sought to recover from the railroad damages for losses inflicted upon their property by a fire alleged to have resulted from the negligence of the railroad. The railroad sought to have a chancery court enjoin the separate suits and bring all of the claims into chancery as one suit in order to avoid a multiplicity of actions. In denying the class action the court said:

Where each of several parties may proceed in equity separately, they are permitted to unite and make common cause against a common adversary, and one may implead in one suit in equity many who are his adversaries in a matter common to all in many cases, but never when the only ground of relief sought is that the adversaries are numerous, and the suits are for that not in itself a matter for equity cognizance. 70 Miss. at 187-188, 12 So. at 32.

The court in the Tribette opinion pointed out that generally recovery of damages for a tort is not permitted in a chancery court. Illustrated in Tribette are class actions which are within equity jurisdiction as well as those which are not within equity jurisdiction. Tribette made it clear that different mill owners whose machinery is propelled by water from a common stream may join in one suit to prevent or abate an obstruction upstream that would interfere with the 'down flow' of water. Equally clear from Tribette is the rule that such mill owners cannot as a class seek damages 'as to the injruy suffered' because, as to damages, there is lacking a community of interest.

Most of the cases relied upon by appellants were either federal cases where class actions were authorized by Rule 23 of the Federal Rules of Civil Procedure, or they were based upon state statutes similar to Rule 23. Mississippi has no such a rule of procedure or statute.

In Barrett v. Coullet, 263 So.2d 764 (Miss.1972), the complainant Barrett purchased a ticket to a closed circuit telecast of a boxing match and sought to maintain a class action for himself and others similarly situated. Barrett's chancery suit was for breach of contract and breach of implied warranty based upon a charge that part of the program was not shown and other parts were of poor quality. On appeal the court noted that the suit simply asserted separate and individual claims for monetary damages and that the claims were independent and several. In denying the class action...