Thomas v. Deviney Const. Co., 54403

• Citation: 458 So.2d 694
• Decision Date: 12 September 1984
• Docket Number: No. 54403,54403
• Parties: Ethel Mae THOMAS v. DEVINEY CONSTRUCTION COMPANY and The Insurance Company of North America.
• Court: United States State Supreme Court of Mississippi

Page 694

458 So.2d 694

Ethel Mae THOMAS v. DEVINEY CONSTRUCTION COMPANY and The Insurance Company of North America.

No. 54403.

Supreme Court of Mississippi.

Sept. 12, 1984.

Rehearing Denied Nov. 14, 1984.

W. O. Luckett, Dan T. Bing, Luckett, Luckett, Luckett & Thompson, Clarksdale, for appellant.

David H. Nutt, Rhoden & Nutt, Jackson, for appellee.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

BOWLING, Justice, for the Court:

This case comes to us from the Circuit Court of Coahoma County. Appellant Ethel Mae Thomas was plaintiff below. Upon the conclusion of her evidence, the trial court, on motion of defendants, directed a verdict for the defendants. The question before us is whether or not the trial court did this correctly. We hold that its action was error and reverse and remand the cause.

On September 6, 1979, appellant received a judgment in the amount of $10,000 against one Chester B. Thomas. The judgment grew out of a motor vehicle collision between a vehicle operated by appellant Thomas and a vehicle owned by appellee Deviney Construction Company and operated by Chester B. Thomas.

The present cause of action was filed by appellant Ethel Mae Thomas against Deviney Construction Company, contending that it owed the judgment against Chester In the first declaration filed, appellant alleged that appellee Deviney was "self-insured" within the meaning of the Mississippi statutes. Deviney answered the first declaration and affirmatively admitted that it was "self insured at the time of the accident."

B. Thomas under the financial responsibility laws of the State of Mississippi, particularly, what is hereinafter discussed and known as the "omnibus clause."

Further, the defendant, in abiding by the trial court's order, filed a pre-trial statement on July 23, 1981, stipulating that Deviney "was self-insured at the time of the accident."

On January 20, 1982, Deviney filed an amended answer stating that at the time of the accident it did have a policy of insurance, and "defendant denies that it was totally self-insured at the time of the accident, but alleges to the contrary that it was insured under a policy of insurance which provided excess coverage above an amount in excess demanded by this action, and accordingly as a practical matter, is self-insured for the purposes of this action."

Thereafter, the plaintiff filed an amended declaration joining as a defendant, in addition to Deviney Construction Company, the Insurance Company of North America (hereinafter INA), alleging that Deviney's truck was covered by this company's policy at the time of the collision and that appellant was entitled to recover under the omnibus clause of the policy.

On February 25, 1982, Deviney Construction Company filed its amended answer admitting that it was an insured under a policy of automobile liability insurance issued by INA and that the policy covered the vehicle involved in the collision "under certain terms and conditions contained in said policy."

On February 25, 1982, INA filed its answer to the amended declaration admitting an automobile liability insurance policy insuring Deviney was in existence but denied appellant's allegations as to the policy's coverage.

The trial of the case started on Monday, July 19, 1982, at 8:30 a.m., with all parties present and announcing ready for trial. Included in the record were certain requests for admissions of fact filed by appellant [plaintiff below] on May 17, 1982. This instrument requested that Deviney admit or deny that the company had ever filed any application to be self insured or had ever been issued any certificate of self insurance under the provisions of Mississippi Code Annotated, Section 63-15-1, et seq. (1983 Supp.) [specifically Sec. 63-15-53], providing for application of any owner in whose name more than twenty-five motor vehicles are licensed.

On June 16, 1982, Deviney filed its answers to the amended request and admitted that it had never filed an application to be a self insurer and that it had never been issued a certificate of self insurance under the applicable statutes.

The reason the above information is important is that it later developed that the insurance policy issued by INA provided for a deductible of $100,000. In other words, it provided that Deviney was responsible for the first $100,000 damage its vehicles did to users of Mississippi highways. It developed in the cause in oral argument that Deviney is a rather large construction company owned by a non-resident conglomerate. Its principal activities are subcontracting work for utilities.

Not the least question in the cause is what is the effect of Deviney ignoring the statute under which it did not become a self insurer, as required, up to the sum of $100,000. We are forced to refresh our recollection that in its first answer Deviney affirmatively stated that it was self insured. In its stipulation of facts filed pursuant to the court's usual order, it was affirmatively stated that "defendant, Deviney Construction Company, was self insured at the time of the accident complained of, ...." In its amended answer Deviney stated "accordingly as a practical matter, it is self insured for the purposes of this action." In its answer to the amended declaration Deviney admitted the

insurance policy existed but did not divulge its terms. It however denied the allegation of the declaration that the insurance policy provided for excess coverage above a certain amount and denied that "Deviney may be self insured to the extent of said certain amount."

AT TRIAL

The trial thereof started on the morning of July 19, 1982, with the burden on the part of appellant to prove that its judgment against Deviney's driver Thomas was collectible under either INA's omnibus clauses under its insurance policy or from Deviney as a matter of law under the type of insurance it was required to have which also would have included an omnibus clause.

Appellant introduced only one witness. He happened to be Chester B. Thomas, Deviney's driver at the time appellant was damaged. The purpose of this interrogation, of course, was to prove that at the time of the collision Thomas was driving the truck "with the permission" of Deviney.

We carefully have studied all of the testimony given by Mr. Thomas. It is charitable to say that he agreed with anyone who was asking him questions. It developed that Deviney's nearest sub-office was in Greenwood, Mississippi, under the direction of a man named Robert Gilbert. The work at Clarksdale was being performed with the use of one truck with which we are involved. This truck and the crew working were under the supervision and control of one Roosevelt Kilpatrick, the foreman. On direct examination by appellant's attorney, Thomas testified that he drove the truck in question "pretty often." He stated that the truck had normally been parked at night behind a "station" but that because of vandalism, Kilpatrick had been instructed to keep it at his home overnight on Paul Edwards Street in Clarksdale. According to Thomas, Kilpatrick kept the keys to the truck and could use it anytime he wanted.

According to Thomas, on December 29, 1978, the day the collision occurred, they had come from work [installing poles] and Kilpatrick had driven the truck to a parking area near a cafe that he ran as a sideline. The truck was locked and Kilpatrick assumed whatever duties he performed in the cafe.

Thomas needed to look at a house he wanted to move into, so he asked Kilpatrick to let him make the trip in the truck. Kilpatrick agreed and gave Thomas the truck keys. The collision with appellant occurred during the course of that trip.

Thomas gave the following testimony on direct examination:

Q. At the time on December 29, 1978, when you got the truck, were you aware of any rules prohibiting the use of this truck for personal use without permission?

A. Yes.

Q. If you got permission?

A. Yes, he definitely said "don't use the truck unless you have permission to use it."

Q. All right. Were you ever given any kind of ... anything in writing that prohibited you from using the truck for personal errands?

A. No.

Thomas stated that he had permission from Kilpatrick to drive the truck on the occasion in question.

On cross examination Thomas stated that he knew that Mr. Robert Gilbert [the superintendent in Greenwood] had made it clear that the truck was not to be used for personal use. He knew that it was not to be used for such. He agreed that he received word from Mr. Gilbert at least once a month that the truck was not to be used for personal use.

Thomas then was subjected to redirect examination. The paramount question and answer was:

Q. And Roosevelt Kilpatrick had control of the truck. He had the keys to the truck, did he not? (emphasis ours)

A. Yes, he did.

Q. And he kept it in his possession all the time?

A. Yes, that's right.

After the testimony of Thomas, appellant introduced the INA policy and rested her case. The attorneys...