Progressive Cas. Ins. Co. v. Keys, 48196
| Decision Date | 11 August 1975 |
| Docket Number | No. 48196,48196 |
| Parties | PROGRESSIVE CASUALTY INSURANCE COMPANY and General Adjustment Bureau, Inc. v. Elijah KEYS. |
| Court | Mississippi Supreme Court |
Bryant & Stennis, Roger T. Clark, Gulfport, for appellants.
Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
Before RODGERS, ROBERTSON and BROOM, JJ.
This is a unique case. It has afforded the members of this Court considerable exhilarating mental gymnastics. It came to this Court from the Circuit Court of Jackson County, Mississippi, in which the jury returned two verdicts. After the usual motion for judgment notwithstanding the verdict and motion requesting a new trial, the defendants, Progressive Casualty Insurance Company and the General Adjustment Bureau, Inc., have appealed to this Court. Another defendant, Chesley Price, was removed and released from the suit by a directed verdict. There is no cross-appeal as to this order.
The facts leading up to the lawsuit may be summarized as follows. Elijah Keys purchased a 1969 Pontiac station wagon from Gulf Motor Company for the sum of twenty-two hundred and ninety-five dollars (2,295.00). The automobile was insured by the appellant Progressive Casualty Insurance Company. The policy contained a collision coverage clause. Thereafter, on August 25, 1972, the plaintiff, Elijah Keys, had a collision with another vehicle on the highway in which his Pontiac was totally destroyed. The plaintiff was unable to secure a settlement with the insurance company, and he turned the claim over to his attorney. The attorney testified that he had reached a firm settlement with the adjuster, General Adjustment Bureau, Inc., the agent of the insurance company for the sum of one thousand seven hundred and thirty-one dollars ($1,731.33), but that later the adjuster for the insurance company refused to pay the claim and requested a 'readjustment of the claim.' After having failed to secure a settlement, the appellee sued (1) the insurance company for the alleged full value of the destroyed automobile under the terms of the contract, less one hundred dollars ($100.00) set out as deductible under the policy, and (2) the insurance company, General Adjustment Bureau Inc., and its agent, Chesley Price, for an alleged tort for having failed to carry out the settlement agreement, and sought punitive damages against the defendants.
The adjustment bureau and its agent filed a motion to dismiss the suit against them on the ground that the declaration stated no cause against them. The insurance company also filed a motion to dismiss the suit, because the declaration attempted to combine a suit on contract and a suit on tort. Both motions were overruled.
Upon the trial of the case, the testimony was in conflict as to the value of the destroyed automobile. The value evidence ranged from two thousand two hundred and fifty dollars ($2,250.00) to one thousand four hundred and twenty-five dollars ($1,425.00). The plaintiff, over the objection of the defendants, offered testimony as to the net worth of the insurance company and the adjustment bureau. Plaintiff also offered evidence, over the objection of the defendants, that the plaintiff was about to be sued because he had not paid the payments due a credit union on the automobile.
The adjustment bureau denied that it or its agent had any ill will toward the plaintiff or his attorney, and none was intended. It was admitted that the attorney for claimant had advised the adjustment bureau that they had sold the salvage of the wrecked automobile for two hundred and ten dollars ($210.00). The agent for the adjustment bureau testified that he was only authorized to pay one thousand four hundred and twenty-five dollars ($1,425.00) to the claimant, but that the automobile could have sold reasonably for two thousand dollars ($2,000.00).
After a careful examination of this record, we have reached the conclusion that the trial court committed the following obvious errors:
The trial court should have sustained the motion of the General Adjustment Bureau, Inc. and Chesley Price to be dismissed from the case at the beginning of the trial because (a) the suit was based upon a contract of insurance and at the time this suit was tried, a suit on a contract (ex contracto) and a suit based upon a tort (ex delicto) could not be maintained in one cause of action (Delta Construction Company of Jackson, Mississippi v. City of Jackson, Mississippi, 198 So.2d 592 (Miss.1967); Nasif et al. v. Booth et al., 221 Miss. 126, 72 So.2d 440 (1954); Potomac Insurance Company v. Wilkinson, 213 Miss. 520, 57 So.2d 158 (1952); ...
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