Nationwide Mut. Ins. Co. v. Tillman

• Decision Date: 09 March 1964
• Docket Number: No. 42874,42874
• Citation: 249 Miss. 141,161 So.2d 604
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. Charles TILLMAN and Mrs. Lula Mae Tillman.
• Court: Mississippi Supreme Court

Page 604

161 So.2d 604

249 Miss. 141

NATIONWIDE MUTUAL INSURANCE COMPANY v. Charles TILLMAN and Mrs. Lula Mae Tillman.

No. 42874.

Supreme Court of Mississippi.

March 9, 1964.

Watkins & Eager, James A. Becker, Jackson, for appellant.

Lee B. Agnew, Jackson, for appellees.

TOM P. BRADY, Justice.

This case comes before us from the First Judicial District of Hinds County, Mississippi, upon appeal by appellant, Nationwide Mutual Insurance Company, from judgments in said court for appellees, on contests of answer to writs of garnishment in favor of appellees, arising out of injuries and damage caused by the collision between an automobile occupied by appellees and an automobile being operated by one Eddie Tellie (also known as Eddie Fisher) who had obtained insurance coverage from appellant in Buffalo, New York.

This case is somewhat unique in that not only by agreement did the trial judge preside as judge and jury, but also by agreement a written stipulation as to the facts was made a part of the record, based upon the pleading, exhibits, letters and other evidentiary data. Thus, without any oral testimony, issues were joined.

Briefly, the pertinent facts are as follows: On or about January 29, 1961, at approximately 6:40 P.M., appellee Charles Tillman, accompanied by his wife, Lula Mae Tillman, a passenger in his 1956 Studebaker Hawk automobile, had stopped said automobile at the intersection of Monument Street and Bailey Avenue in the City of Jackson, in response to a traffic light, and was waiting for said traffic light to turn from red to green so that he could continue, when a 1955 Mercury automobile, being driven by one Eddie Tellie, a tweny-seven year old Negro, defendant below, (also known as Eddie Fisher), crashed into the rear of the automobile in which appellees were seated while awaiting the change of the traffic signal aforesaid. These and other pertinent facts hereinafter referred to are shown in the accident report by the two investigating city policemen, which is, by agreement, a part of the record. The resultant personal injuries, attendant medical expenses and property damage caused by said collision are fully set forth in the declaration of appellees.

On May 19, 1961, appellees filed separate suits in the aforesaid circuit court against defendant, said Eddie Tellie, also known as Eddie Fisher, a nonresident whose post office address was 135 Sherman, Buffalo, New York. Being a nonresident, service of process was obtained upon defendant through service upon the Secretary of State, under the provisions of Sec. 9352-61, Miss.Code 1942, Rec., and Amended. Charles Tillman, appellee and plaintiff below, in addition to personal injuries sustained, claimed medical expenses incurred of more than $50, and property damage of $196.80. Total, actual and punitive damage demanded was $5,000, with court costs.

Appellee, Mrs. Lula Mae Tillman, plaintiff below, claimed, in addition to injuries, medical expenses of more than $300, and loss of wages of approximately $360. The total amount of damages, actual and punitive, sued for by Mrs. Tillman was $50,000, and costs of court.

Summons in the two suits were served upon Heber Ladner, Secretary of State, on May 19, 1961.

In order that all pertinent facts may be reviewed, it is necessary to deal with considerable specific details.

The stipulation of facts, and the record reveal, that on May 22, 1961, the Secretary of State mailed a registered letter to Eddie Tellie, a. k. a. Eddie Fisher, at 135 Sherman, Buffalo, New York. This registered letter, No. 48,492, was received by the postmaster at Buffalo, New York, on May 24, 1961, and return receipt was requested. The letter was returned on May 26, 1961 marked 'unclaimed', and was received by the Secretary of State May 29, 1961.

Eight months later, on January 22, 1962, two additional registered letters, Nos. 49,026 and 49,027, were mailed to the said Eddie Tellie, a. k. a. Eddie Fisher, at 135 Sherman, Buffalo, New York, which arrived at Station A, Buffalo, New York, on January 24, 1962. The postmaster at Station A, Buffalo, on January 23, 1962, was notified by the Secretary of State to change the address from 135 Sherman Street to 123 Sherman Street, which was done, and the letters containing a copy of the summons were refused by one Eddie Fisher, of 123 Sherman Street, Buffalo, New York claiming that he was not the Eddie Fisher referred to, has never been known as 'Eddie Tellie', and knows no one in Mississippi. This letter containing said information was returned by Postmaster Frank W. Dryans on January 25, 1962, and received by Secretary of State Ladner on January 27, 1962. Default judgment was taken by each of the appellees on March 8, 1962, against the said Eddie Tellie, a. k. a. Eddie Fisher, in the sums of $1,000 and $7,500, respectively.

On the 26th day of April 1962, suggestions for writs of garnishment were issued on said default judgments, commanding appellant to appear and answer. Appellant's motion for thirty days additional time in which to answer was allowed by order of May 7, 1962, and on May 25, 1962, appellant answered both writs of garnishment in the negative as to the four standard questions of the aforesaid writs, and a fifth answer in defense asserted that the judgments entered were void.

Appellees-plaintiffs, on June 4, 1962, filed contests to the four answers to the writs of garnishment by appellant, in which were incorporated a motion to strike the first sentence of Paragraph 5 of appellant's answer to the two writs of garnishment and propounded two interrogatories under Sec. 1712, Miss.Code 1942, Rec. The first sentence of Paragraph 5 of the answer to the writs of garnishment being as follows: 'Further answering, the said garnishee avers that the judgment rendered herein is void.' The interrogatories were: (1) State whether or not there is, or was, an owner's liability policy issued by Nationwide Mutual Insurance Company in the State of New York on or about December 17, 1960, insuring Eddie Tellie, and bearing policy No. 65-622-269; (2) if the answer to interrogatory No. 1 is 'Yes', furnish a certified copy of said policy in its entirety.

On July 6, 1962, appellant, garnishee below, filed answer to the appellees' contest of answer to the writs of garnishment made by appellant.

This answer, in substance, denied liability of appellant to the appellees under the policy of insurance issued to the insured, Eddie Tellie, and pled that insured had violated certain conditions of notice, assistance and cooperation, the compliance with which appellant urges was conditions precedent to any liability under said policy, and the aforesaid Eddie Tellie having failed, refused and neglected to comply with the aforesaid conditions, in Paragraphs 1, 2, 9 and 19, the same being the conditions precedent of notice, assistance and cooperation, that the appellant-garnishee was relieved of any liability under said policy for any injuries or damages sustained by appellees arising out of said accident. In addition, the appellant-garnishee answered interrogatory No. 1 in the affirmative, and furnished a verified copy of the liability insurance policy, which is a part of the record.

On December 26, 1962, appellees answered and denied the four defenses asserted by appellant in the answers to appellees' contest of answers to the writs of garnishment. On May 27, 1963, judgments were entered in favor of appellees. Charles Tillman, et ux., Lula Mae Tillman, for $1,000 and $7,500, respectively. The trial judge entered a written order and opinion therefor.

In the trial court the appellant, as garnishee, answered; denying that it (1) has been indebted to defendant; (2) that it had or has had any effects of defendant; stating (3) that it knows of no one who is indebted or has any effects of the defendant; (4) that it has no knowledge of any person having any effects of said defendant under their possession or control, and (5) that the judgment rendered is void.

The appellees filed a contest to the foregoing answers to the writ of garnishment by the garnishee-appellant alleging that appellant is indebted to the defendant in the sum of $1,000 and $7,500, the amount of the judgments obtained, plus legal interest against the defendant by appellees. Though a certain automobile insurance policy had been cancelled subsequent to the accident, it was in full force up to February 8, 1961, which date is subsequent to the wreck which occurred on January 29, 1961. The policy limits of $10,000 injury, of $20,000 death, and $5,000 property, amply covered the damages sustained by appellees, as shown by the judgments in their favor.

Appellees further pled that appellant was authorized to do business in the State of Mississippi, and appellees demanded judgment in the sum of $1,000 and $7,500, respectively.

A motion was made by appellee to strike the first sentence in Paragraph 5 of appellant's answer to the writ of garnishment, which was that the judgments were void. Two interrogatories were propounded also, and which were answered by the appellant admitting that it had issued a liability policy to the defendant and furnishing a copy of this policy.

We realize that there is some repetition of facts in the following statement, but we do so in order that the issues which were presented and determined in the trial court can be clearly presented here.

These issues were sharply drawn by the appellant's answer to the appellees' contest of the answer of the writ of garnishment by the garnishee-appellant. The issues were: (1) It denied that it was indebted to the appellees in the sum of $1,000 and $7,500, respectively, but admits that Policy No. 65-622-269 had been issued to Eddie Tellie and that it speaks for itself, and is attached to this pleading; (2) that under the conditions of said attached policy, under a section headed 'Conditions', there were Conditions 1, 2, 9 and 19, the performance of which were precedent to...