Great American Surplus Lines Ins. Co. v. Dawson, 54697

• Decision Date: 08 May 1985
• Docket Number: No. 54697,54697
• Parties: GREAT AMERICAN SURPLUS LINES INS. CO. and Michael George Miller v. Wilmer DAWSON.
• Court: Mississippi Supreme Court

Page 87

468 So.2d 87

GREAT AMERICAN SURPLUS LINES INS. CO. and Michael George Miller v. Wilmer DAWSON.

No. 54697.

Supreme Court of Mississippi.

May 8, 1985.

James L. Carroll, Richard T. Lawrence, Watkins & Eager, Jackson, for appellant.

Michael S. Allred, Thomas L. Kirkland, Jr., Satterfield & Allred, Jackson, MS, Donald E. Walsh, Watson, Wilkerson & Walsh, Liberty, for appellee.

Before PATTERSON, C.J., and DAN M. LEE and SULLIVAN, JJ.

PATTERSON, Chief Justice, for the Court:

This appeal follows a judgment in the Circuit Court of Amite County in the aggregate amount of $550,000.00 in favor of the plaintiff/appellee Wilmer Dawson. We reverse and remand for a new trial.

In our opinion the trial court improperly overruled defendants' motion for mistrial before any testimony was heard by the jury. Therefore we recount only those facts necessary for disposition on that ground.

On January 3, 1979, Great American Surplus Lines Insurance Co. (Great American) and Lloyds, London (Lloyds) each issued to Wilmer Dawson a policy of insurance covering three pieces of logging equipment as follows: one (1) 1977 Viking loader in the amount of $10,500 each policy; one (1) 1974 Taylor skidder in the amount of $7,500.00 each policy; and one (1) 1975 Timer Jack skidder in theamount of $7,500 each policy. Thus Great American and Lloyds had each insured the equipment for $25,500.00, bringing the total amount of insurance issued on the property to $51,000.00. Both policies were brokered by a local agent in Gloster, Mississippi, through Dupuy-Busching, an agent of both Great American and Lloyds.

On June 22, 1979, a fire destroyed all three pieces of logging equipment. The insurance companies denied Dawson's claim for the loss on the ground Dawson's violation of a warranty provision had voided the policies.

Dawson filed suit on October 9, 1981, in the Circuit Court of Amite County against Great American; Michael George Miller, individually and as representative of certain of the underwriters at Lloyds, London; and Dupuy-Busching General Agency, Inc. The declaration alleged in part that Great American and Lloyds had in bad faith failed to pay the claim. Dawson prayed for contractual damages in the amount of $25,500.00 plus interest from the date of the claim under each policy; consequential damages in the amount of $250,000.00; and punitive damages in the amount of $1,000,000.00.

Great American and Lloyds answered and pled affirmatively that Dawson had violated the policies' warranty provision that "all equipment shall be parked when discontinuing work with at least 25 feet separating each piece of insured equipment" and that Dawson was therefore not entitled to recover under the insurance contract.

The case proceeded to trial in June 1982. After the jury was voir dired, selected, and sworn to try the case, defense counsel Richard Lawrence conducted the following examination of a witness scheduled to testify for the defense:

[OUT OF PRESENCE OF JURY]

Q. Mr. Hess, would you state your name?

A. Odis R. Hess, H-E-S-S, Jr.

Q. And what position do you have with Great American Insurance Company?

A. I'm with the Claims Department.

Q. And while the jury was being selected in this case, would you tell us what you saw as relates to potential witnesses in the case, Dickie Ivy and Roger Dawson?

A. I don't know who the two gentlemen are, but it wasn't during the selection of the jury; it was while you all were in here. In fact it was moments before His Honor and Counsel emerged from this room we're sitting in, which is the juryroom. And the two witnesses were sitting there conversing and joking and carrying on; Wilmer Dawson was part of it, and all the jurors were seated waiting to be called back to the box; some were in the box. And of course all just were listening to this rather folksy and joking conversation which seemed to violate the instructions to have the parties, Counsel, and jury avoid that type of personal contact, and it was--It would have been, put it this way, at home gross misconduct in terms of violating the instructions. Now, down here, maybe that is not the case, but in both State and Federal Court at home, such conduct is considered reprehensible and will not be tolerated.

Q. What, if any, prejudicial effect do you think this might have on your company?

A. I think it ingratiates unnecessarily the Plaintiff to the jury without the opposing parties having the same opportunity to prove that they are decent, human people too, and it gives a personal flavor, which of course, always has an end--it's hard to determine what, if any, effect that personal contact has; but it has more of an effect on the jury than the failure of any contact with the opposing side who is deliberately stepping aside and walking away. When we see a juror coming up, we turn our backs and walk away, which makes you look like a rather cold, impersonal, heartless sole [sic] as opposed to their being the good old folks, and the whole community is just in there sort of pulling for one of the home town people, which quite obviously we aren't; I mean you can sit here and listen to my accent and tell that. [Emphasis added.]

After concluding the examination Attorney Lawrence stated the following:

Your Honor, we would like for the record to show, and I think the other side will stipulate to it, the two witnesses, are Jack Cobb and Dickie Ivy, two witnesses that are going to testify in favor of the Plaintiff's case, and they are very material witnesses; and whether or not their testimony would be believed in the case would definitely have an influence. And I think by them getting up in front of the jury and parading in front of the jury would have a definite adverse effect on our client, and we would move for a mistrial at this time based on what Mr. Hess has said. [Emphasis added.]

The court then allowed plaintiff's attorney Michael Allred to question Mr. Hess, and this colloquy transpired:

BY MR. ALLRED:

Q. Mr. Hess, were these folks ... talking about this lawsuit?

A. I was not able to hear the first part ... and the only part I got was that one in the brown shirt with the scar, whichever one he is ... said, "Well, we'll just give Wilmer here--some comment about money--and then we'll get Wilmer here to be our co-pilot." ...

Q. All right, sir. Did they talk to the jury?

A. The jury was completely surrounding them; they were on the aisle and the first two seats front row, and the jury was in a cluster around them. And to a person, there was not a juror, not looking at them.

Q. Did they speak to each other, sir, or the jury?

A. Well, the one in the brown shirt ... looked over and as he was saying it, he had his head turned, and he was facing, there was no one in that group that he was facing across the aisle except jurors. I have no idea who he was directing it to because I'm looking at him from a different angle. There was a gentleman in a khaki suit ... that was sitting on the rail that was partially blocking the view ...

Q. You can't state under your oath that any of these three gentlemen directed any remarks to the jurors by name ... can you, sir? ...

A. I did not hear them direct--did not hear a name of a juror mentioned. However, he was looking right into the faces of several jurors, and they were, of course, talking money; and the only surmise--I think we can all decide what that might have been all about, but I don't know.

Q. Could have been about having lunch; couldn't it?

A. Being a co-pilot, no, I don't think so.

Q. The jurors didn't talk back to them; did they?

A. They were laughing back ... [Emphasis added.]

The parties stipulated the two men conversing with Dawson were Keith Foster, the agent who sold him the insurance policies; and Richard Ivy, a logging inspector; both of whom were to testify for the plaintiff. Defense counsel then stated, "[W]e would also like for the record to show that the court instructed the jury...