Opinion
No. 41392.
April 25, 1960.
1. Evidence — oral testimony not competent to prove terms and provisions of owner's automobile liability policy.
In action by passenger in automobile against owner for injuries sustained in automobile accident, oral testimony was not competent to prove terms and provisions of owner's automobile liability policy.
2. Evidence — court erred in denying passenger's motion for subpoena duces tecum to require owner to produce policy for inspection and for introduction in evidence.
Where passenger in automobile brought action against owner for injuries sustained in automobile accident, and owner pleaded in bar of the suit a release, which was signed by passenger, and for which passenger had received $500 from insurance company, and passenger sought to avoid the release, on ground that there was no consideration for the release, because insurance company was allegedly obligated by automobile liability policy to pay medical expenses of $500 without regard to whether there was any negligence, Circuit Court erred in denying passenger's motion for subpoena duces tecum to require owner to produce policy for inspection and for introduction in evidence.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Franklin County; JAMES A. TORREY, Judge.
Charles Herring, Meadville; Calvin B. Wells, Natchez, for appellant.
I. The Circuit Court erred in overruling a motion for a writ of subpoena duces tecum filed by the appellant for the purpose of procuring a copy of defendant's collision, comprehensive and liability insurance policy in the possession of the defendant that had extended coverage including medical benefits up to $500 for any one person sustaining an accidental injury. The Court further erred in refusing to allow the appellant to introduce in evidence the insurance policy of the defendant after having procured a copy of this policy without a writ of subpoena duces tecum. Secs. 1658, 1659, Code 1942.
II. The Court erred in sustaining appellee-defendant's plea in bar, being a release purportedly signed by the appellant and her husband, that is alleged to have been procured through fraud and misrepresentation of the defendant's insurance carrier's agent. Anderson v. Cumberland Telephone Telegraph Co., 86 Miss. 341, 38 So. 786; Holmes v. Holmes, 154 Miss. 713, 123 So. 865; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148, 53 So.2d 69; Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Shivers v. Biloxi-Gulfport Herald, 236 Miss. 303, 110 So.2d 359; Southern Bell Tel. T. Co. v. Quick, 167 Miss. 438, 149 So. 107; 32 C.J.S. 1089.
III. The Court erred in sustaining appellee's plea in bar for lack of consideration as recited in the purported release. Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 42 So.2d 421; Tate v. Robinson, 223 Miss. 461, 78 So.2d 461.
Brandon, Brandon, Hornsby Handy, Natchez; Forman Torrey, Meadville, for appellee.
I. Aside from the fact that the motion itself was not sufficient; and aside from the fact that the Court did not overrule the plaintiff's motion until the plaintiff actually had the defendant, Mr. Andrew Lee, on the witness stand as an adverse witness, and then only at a time when the insurance policy in question was physically in the court room in the possession of the plaintiffs' husband, Clyde Lee, there is nothing with respect to the action of the Court in overruling the motion for subpoena duces tecum of which the appellant can complain since thereupon the insurance policy in question, being in the possession of the plaintiff's husband, Clyde Lee, was handed to counsel for the plaintiff, so that counsel for the plaintiff had every opportunity of examining it and indeed had the opportunity of offering the same in evidence if indeed it was properly admissible in evidence.
II. The policy was never offered in evidence and hence the Court had no opportunity to rule upon whether or not it would or would not be admitted in evidence. Counsel for appellant certainly cannot by this means cast the court below in error.
III. Even if the policy had been offered and even if the Court had received it in evidence, we submit that the decision of the court ultimately could not have been contra to that which it was in this instance. If we grant for the sake of argument that there was some provision in the policy providing for payment of medical expenses incident to the accident, the record discloses that more was paid for the release than hospital and medical expenses necessarily incurred as a result of the accident complained of.
IV. The rule and jurisprudence of Mississippi is that when one seeks to have set aside and to avoid the effects of a release executed by way of compromise settlement on the ground that same was procured by misrepresentation and fraud, that evidence must be clear and convincing and the rule of preponderance is not applicable. Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 42 So.2d 431; Hunt v. Sherrill, 195 Miss. 668, 15 So.2d 426.
V. The release was supported by an adequate consideration.
The appellant Mrs. Lois Lee, wife of Clyde Lee, sued her husband's father, the appellee Andrew Lee, for a personal injury sustained on account of the alleged reckless driving of Andrew Lee's automobile by the husband of the appellant, Clyde Lee. The suit was based on the theory that she was a guest in the car of Andrew Lee and that he permitted his son Clyde Lee to drive the car at a dangerous and excessive rate of speed and wrecked the same, causing the appellant to sustain her injuries.
It was the theory of the plaintiff that her father-in-law, the appellee Andrew Lee, had an insurance policy which had been issued to him by the State Farm Mutual Auto Insurance Company and that this policy agreed to pay to anyone injured by the operation of the automobile as much as $500 to take care of medical, hospital and doctor's bills without regard to whether or not the insured was at fault in connection with the operation of the automobile; that this liability of as much as $500 was in addition to any liability that the insured may incur to another person for personal injuries caused by the negligent operation of the automobile.
The defendant pleaded in bar of the suit a release, compromise and settlement of any and all claims against the insured on account of the accident sustained by her on March 20, 1955. Thereupon the plaintiff set up matters in avoidance of the release and settlement on the ground that the insurance agent represented to her and to her husband that he wanted the papers signed in order that he might obtain a check from the company to take care of the hospital and doctor's bills, and that the signing of the release "wouldn't interfere with anything else" and that "this does not interfere with any final settlement."
The plaintiff filed a motion for a subpoena duces tecum against the defendant to require him to produce the policy of insurance for inspection, and for introduction in evidence should it be deemed necessary. The trial judge heard the plea in bar preliminary and denied the motion for a subpoena duces tecum.
When the defendant had testified and was later recalled to the witness stand as an adverse witness he stated that the policy was in the possession of his son Clyde Lee, husband of the plaintiff. But at that time the court had already ruled repeatedly that it would not go into any matter about the insurance policy except to let the witness state that he had a policy of insurance, and had already denied the motion for a subpoena duces tecum, and the judge then reiterated his ruling. (Hn 1) It is true that the plaintiff didn't offer to introduce the policy in evidence after being advised that her husband, Clyde Lee, had the policy, but when this fact was developed the court had already made its ruling. The court was correct in holding that oral testimony was not competent to prove the terms and provisions of the policy, but we think that it was in error in denying the motion for the subpoena duces tecum.
The amount paid for the release was the sum of $500 and it was shown that the plaintiff did not receive any part of this sum for her own use and benefit, except that it paid off her medical, hospital and doctor's bills, but it is her theory of the case that there was no consideration for the release since the insurance company that issued the checks was already obligated to pay this expense without regard to whether the insured was negligent or not.
(Hn 2) For the error of the court in denying the motion for a subpoena duces tecum and in sustaining the plea in bar without allowing the plaintiff to inquire into the provisions of the policy as expressed by its own terms if produced for introduction, we think that the cause should be reversed and remanded and that the plaintiff should be permitted to develop her theory of the lawsuit by the introduction in evidence, if desired, of the insurance policy in question.
Reversed and remanded.
Lee, Kyle, Ethridge and Gillespie, JJ., concur.