National Sec. Fire & Cas. Co. v. Bowen

• Decision Date: 30 September 1983
• Citation: 447 So.2d 133
• Court: Alabama Supreme Court
• Parties: NATIONAL SECURITY FIRE & CASUALTY COMPANY, et al. v. Stanley R. BOWEN. 82-182.

Page 133

447 So.2d 133

NATIONAL SECURITY FIRE & CASUALTY COMPANY, et al. v. Stanley R. BOWEN.

82-182.

Supreme Court of Alabama.

Sept. 30, 1983.

Rehearing Denied March 2, 1984.

John B. Givhan of Albrittons & Givhan, Andalusia, for appellants.

Griffin Sikes, Earl V. Johnson and Jerry E. Stokes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellee.

FAULKNER, Justice.

This is the second time that this case has been appealed to this court. In the first appeal this court reversed and remanded the case to the trial court on the ground that Bowen had not carried the burden of proving bad faith on the part of National Security when it denied his claim for loss of equipment because of fire. National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982). Even though presented, this court did not decide the issues of malicious prosecution and outrageous conduct. Those issues are presented in this appeal.

Following remand to the trial court, the case was tried to a jury on two claims alleged in the complaint. Claim one alleges malicious prosecution. The crux of that claim is:

"2. Plaintiff claims that defendants, Ed Pierson and Gene Bosche, agents, servants or employees of the defendants, National Security, while acting within the line and scope of their authority for said defendants, maliciously and without probable cause therefor, caused the plaintiff to be indicted on the 17th day of June, 1977, by the Covington County Grand Jury and tried therefor on a charge of (1) false pretenses; and (2) arson."

Claim Two is based on harassment, and is set out below:

"2. Plaintiff alleges that defendants, Ed Pierson and Gene Bosche, agents, servants or employees of the defendants, National Security, while acting within the scope of their authority for said defendants, (beginning at a time prior to and continuing after said indictment) did intentionally and maliciously harass the plaintiff in the course of an investigation by defendant corporations concerning an insurance claim made by plaintiff against defendant corporations. That defendants, Ed Pierson and Gene Bosche, acting as investigators for said defendant corporations and acting within the scope of their authority as an agent, servant, or employee of said defendant corporations, did bribe witnesses to testify falsely against plaintiff in the judicial proceedings referred to in Claim One in order to coerce plaintiff to drop said claim against defendant corporations; that defendants, Ed Pierson and Gene Bosche, acting within the scope of their authority as agent, servant or employee of said defendant corporations, did attempt to coerce the plaintiff to drop said insurance claim and plead guilty to the criminal charges referred to in Claim One by telling plaintiff they could obtain probation for the plaintiff if plaintiff would plead guilty to the criminal charges.

"3. Plaintiff alleges that defendants, Ed Pierson and Gene Bosche, acting within the scope of their authority as agents, servants or employees of said defendant corporations, did harass the plaintiff by continually telephoning, at all times of the day, the plaintiff and other members of plaintiff's family and threatening the plaintiff and members of his family in an effort to coerce plaintiff to drop the insurance claim against said defendant corporations; that said abusive telephone calls did cause the plaintiff and his family extreme mental suffering and anguish."

Damages of $1,000,000.00 were alleged in each claim of the complaint. The jury returned a general verdict of $1,500,000.00, in favor of Bowen and against National Security. National Security timely filed a JNOV motion, or in the alternative a motion for new trial. The trial court denied both motions. National Security appealed. Its appeal can be reduced to three issues, namely: (1) sufficiency of the evidence, (2) denial of certain written requested charges, and (3) excessive damages.

In 1976, Stanley Bowen was in the business of logging, pulpwooding, livestock raising, and operating a service station and store. Bowen's brother, Donald Bowen, was in charge of the pulpwood and logging operation. On September 10, 1976, Bowen bought a used John Deere skidder, and a Windham loader to be used in the logging business. Bowen's security agreement for this equipment was assigned to Commercial Credit Equipment Company, Montgomery, Alabama. This equipment was insured by National Security.

During the Thanksgiving weekend of 1976, the skidder was found in a creek--put there by an unknown person or unknown persons. It suffered water damage, and a claim was filed with National Security's agent, R.D. Johnson of Lomax-Johnson, Dothan, Alabama. After investigation by a local adjuster, the claim was paid.

In April 1977, Bowen's skidder and loader were burned. The loss notice filed by Bowen stated that the equipment had been left "in the woods." The agent, R.D. Johnson, became suspicious. He suspected arson. Bowen was unsure as to the cause of the fire, but he pointed a finger at "Frog" Williamson, who had been fired by Donald Bowen prior to the fire. Williamson had let Stanley know that he was greatly displeased with the dismissal. However, Stanley refused to overrule his brother.

Coincidentally, a week before the fire loss notice, R.D. Johnson received a letter from Beneficial Investigative Services, Conyers, Georgia, introducing itself as an organization offering a unique service to the insurance community. The letter, signed by Eugene Bosche, stated that the firm wanted to tell Johnson of its services, "which you may have a need for at this time." Upon receipt of the letter from Beneficial, Johnson telephoned Gene Bosche, its president, and asked if he could determine the origin of the loss, the cause of the loss, and the party responsible. On May 2, 1977, Johnson wrote Bosche a letter confirming their conversation:

"RE: Special Investigation

Insured: Stanley R. Bowen

Reported Fire Loss--Date of Loss:

April 12, 1977

"Dear Mr. Bosche:

"In accordance with our telephone conversation of this date, we are enclosing herewith the information presently contained in our file. As you will see, the information consists only of the loss notice and a file copy of the policy with attachments.

"It is reported to us that the insured left both of the machines that are insured under this policy in the woods and upon returning the next morning found that both of the machines had burned and would in the insured's opinion, be a total loss. The facts would certainly suggest that these machines were deliberately burned and we would like to investigate the possibility of proving who burned the machines.

"It is my understanding that your investigator will call me before he leaves the area or concludes his investigation so that we can have an opportunity to discuss his file material and determine if any further investigation is merited.

"Very truly yours,

"R.D. Johnson"

Subsequently, Gene Bosche and Ed Pearson were employed by Johnson to conduct the investigation. They were paid on an hourly basis, and their bill amounted to more than $4,000.00 when it was submitted to Johnson.

The investigation by Bosche and Pearson appears to have been conducted in an unorthodox manner as far as so-called private investigators are concerned. When interrogating persons, they would flash some kind of a badge; they used each other's names; they attempted to bribe or threaten persons whom they interrogated to induce them to implicate Bowen as the arsonist; and on one occasion stuffed $200.00 in a person's (Willie Byrd) shirt pocket with the admonition that he was counted on to help them out. On this occasion, the evidence shows that Johnson was with the investigator (Pearson) when the $200.00 was given to Byrd. About a week later the investigator Mr. Pearson, attempted to get Byrd to sign a statement implicating Bowen in the burning. When Byrd refused, Pearson threatened Byrd by telling him that he could have him "locked up."

On another occasion, Pearson and Johnson talked to Dick Gavan at a place called the Fish Bowl. They were in a black sports car. Johnson asked Gavan if he knew Bowen (Johnson had some papers in his hand) and Gavan answered yes. Pearson got out of the car and asked Gavan to "sign some papers" stating that Bowen had hired him to burn the equipment. Pearson offered Gavan money to sign. Gavan refused; Pearson flashed his badge, and Gavan walked away.

Pearson went to the home of James Darrell Williamson one night and told him that he was from National Security and he wanted Williamson to sign a statement implicating Bowen. Pearson showed him a badge and told him that if he did not sign he would lock him up for selling drugs. Later on, Pearson went to the Covington County Jail and asked Ronnie Worrells to get on the stand and "lie against Stanley Bowen." Worrells, who could neither read nor write, signed a statement implicating Bowen.

Next, Pearson, accompanied by a deputy sheriff, went to the home of "Frog" Williamson--a person who could neither read nor write--and obtained a statement that implicated Bowen. Pearson gave "Frog" $100.00 designated as "hush money."

Bowen was subsequently indicted by the grand jury for two separate offenses--arson III, and false pretenses. Pearson and Deputy Sheriff Harrell were the only witnesses who appeared before the grand jury. The indictments were based upon the statements of Worrells and "Frog" Williamson. Bowen's trial on the charge of false pretenses resulted in a mistrial. Both cases were eventually nol-prossed by the district attorney.

Meanwhile, even after the indictments, Bosche and Pearson continued to harass Bowen. They threatened to kill his two small sons; they threatened to cut off the children's arms; they called Bowen and told him that he would look good lying beside his dead brother (who, by the way, had suffered a gunshot wound to his head).

Finally, the last time Bowen saw Pearson was while...