Armstrong v. Employer's Liability Assur. Corp. 125 Miss. 570, 88 So. 163

Armstrong v. Employer’s Liability Assur. Corporation, Limited.

[88 South. 163,

No. 21379.]

1. EIvidenob. Evidence of nonpayment of judgment in fact admissible.

Where a pending lawsuit is compromised for a certain amount which is paid to the plaintiffs and an order of dismissal taken in the case, which by agreement is set aside and a formal judg*571ment entered reciting a trial by a jury and verdict for a certain sum, which, judgment was voluntarily marked satisfied by plaintiffs, testimony is admissible to show that no loss was incurred and no money actually paid out in satisfaction of this judgment.

2. Evidence. Testimony of nonpayment of satisfaction money held, not to vary court records showing satisfaction of judgment.

This testimony does not vary, alter, contradict, or impeach the records of the court, which records show the rendition and satisfaction of the judgment.

3. Evidence. Evidence showing no loss sustained hy assured, and no money paid t>y him, held competent in suit on indemnity policy.

Where a party has compromised a suit against him, and paid to the paintiffs the sum of three thousand five hundred dollars in full settlement therefor, and had the suit' dismissed, and subsequently, at .the request of the insurance- company, which has agreed to pay any loss by reason of liability imposed by law upon the assured (the plaintiff) for damages on account of personal injuries, and -upon the request of the insurance company the order of dismissal is set aside and a judgment entered, reciting a trial by jury and a verdict in plaintiff’s favor for this amount, which judgment is marked satisfied by the plaintiffs, under this insurance agreement it is competent for the insurance company to prove that no loss was sustained by the assured, and no money was paid out by him in satisfaction of the judgment, but that the amount was actually paid before the judgment was entered. This testimony in no wise impeaches the records of the court showing the entry and satisfaction of the judgment.

Appeal from circuit court of Hinds county.

Hon. W. H. Potter, Judge.

Action by John W. Armstrong against tbe Employer’s Liability Assurance Corporation, Limited. Judgment for defendant, and plaintiff appeals.

Affirmed.

J. N. Flowers, Ellis B. Cooper and L. K. Raonsey, for appellant.

Appellant files bis suit and says that there has been imposed upon him by law the expenditure of three thousand five hundred eighteen dollars and seventy cents by reason of his having struck with his automobile the person of *572one James Kelly. How is this evidenced? It is evidenced by the record in the case of Kelly v. Armstrong.

But appellee says that the judgment in this case does not show the true facts. The judgment actually entered shows a trial and shows a verdict. If this were true ap-pellee must admit that it is liable. But appellee offers evidence to show that what the record says is not true.,. Appellee did offer evidence to show that what the record shows was not true and the court below overruled the objection. So, therefore, the first inquiry will necessarily be as to whether such testimony is competent.

This court in the case of Sadler v. .Prairie Lodge, 59 Miss. 572, has this to say: “Such a recital as this in the judgment or decree of a domestic court of general jurisdiction cannot be contradicted or questioned in a collateral proceeding.” Goochs v. Simmons, 57 Miss. 188; Freeman on Judgments (3 Ed.), section 331, and authorities cited. “So long as such a judgment remains unreversed and unassailed by some direct attack brought for the purpose of reversing or annulling it, its recitals must be respected in all collateral matters, and in all proceedings necessary for carrying out and executing it, but it may always be shown to be false by direct attack — .”

In the case of Murrah v. State, 51 Miss. 652, it was contended on a writ of habeas corpus that the conviction of the appellant was improper .and that the judgment was fraudulent and void and that there was no trial by jury as alleged. The judgment recited that a jury had tried the appellant but he attempted to show bjr parol that this was untrue. The lower court denied this contention and the appeal folloAved. This court said therein: “That the record imports absolute verity is a rule too well established in reason and by adjudication to be now questioned. If the impeachment of a record by parol evidence were to be permitted in a single instance, the value of records would be entirely destroyed.” “No rule' of law is older than the one indicated. Its antiquity is beyond ordinary research.”

*573In the case of GMldress y. Curley, 92 Miss. 571, 46 So. 164, this court further said: “The record being the sole embodiment of the judicial proceedings, no other materials or utterances, oral or written, can be set up in competition with it. In other words, but less correctly, the record is conclusive.” This case was approved in Stevenson v. McLeod, 81 So. 788.

And, then again, in the case of Mundevüle v. Stockett, 28 M'iss. 398, this court said: “The record must be tried by itself. It imports absolute verity; and if the defendants desire to controvert it they must rely alone upon the record for that purpose, and introduce as their evidence, a transcript of the entire record of the judgment as entered in court, or by the court directed to be entered. The question then would be tried by comparison of the two transcripts, and not by an isolated entry of an order in the cause, or by par-ol evidence, as attempted by the defendants by introducing the deposition of the clerk of court.” See, also, Shirley v. Feurne, 33 Miss. 653.

So we have the well-settled proposition, to vary, alter or contradict a record is not permissible. It is not permissible to vary, alter or contradict the terms of a contract which is in writing. This is based upon the soundest pub lie policy, but the rule as to judgments is founded not only on this policy but on another just as far reaching.

Now, under the terms of the policy it was incumbent on this appellant to show that the sum sued for wag in satisfaction of a liability imposed by law.

Murshull & Wallace, for appellee.

The policy of indemnity insurance being plain and unambiguous in its terms, is construed like any other contract and constituted the law governing the mutual rights and obligations of the appellant and the appellee growing out of the accidental killing of the aged veteran by the appellant’s automobile. As said, this court in the case of Penn. Mutual Life Insurance Company v. Carrie B. Cor *574 don, 104 Miss. 270, 61 So. 311: “•’What is a policy of insurance? It is the instrument setting forth the contract of insurance. It is the evidence of the agreement between the insurer and the insured. Its purpose is to show the considerations, the terms, the contract of indemnity, the privileges, the benefits, and the conditions. The usual rules for construing contracts should be applied in considering contracts of insurance.”

That these policy provisions, stipulations and conditions accorded the appellee the absolute right to control the question of compromise of a claim against the appellant, and not to be .bound by any compromise made by the appellant save upon such conditions as the appellee might impose, is settled by all authorities, and in all jurisdictions in which the question has been raised and determined. Schmidt & Sons Brewing Compmvy v. Travellers Insurance Company, 244 Pa. 286, 90 Atl. 653; Rumford Falls Paper Gompa-ny v. Fidelity & Casualty Company, 92 Me. 574, 43 Atl. 503; London Guaranty & Accident Company v. Illinois Gentral Railroad, Company, 97 Miss. 165, 52 So. 787; St. Louis Dressed Beef Company v. Maryland Casualty Company, 201 U. S. 172; Btutler Brothers v. American Fidelity & Casualty Company, 120 Minn. 157, 139 N. W. 355.

That the power of an agent, whether he be an attorney or other class of agent, rests solely upon the authority conferred upon him by his principal is equally well established. And when one dealing with the agent has notice (as in this case) of the limitation of the agent’s authority to bind the, principal, no individual actions or statements of the agent can estop or bind the principal, because then there is no apparent authority even. Cape County Saving xBanh, et al v. Gicin Lewis Grocery Company et al. (Miss.), 86 So. 275; Dahnhe-W alicer Milling Company v. T. J. Phillips (Miss.), 117 Miss. 204, 78 So. 6; London Guaranty é Accident Compamj v. Illinois Central Railroad Compamj, 97 Miss. 165, 52 So. 787. And an agent may testify (as in this case) to the limit and scope of his au*575thority. Riechmcm-Crosby Company v. Dinwiddie, 117 Miss. 103, 77 So. 533, 906. ' .

As to appellant’s proposition that the entry of the jury and verdict form of judgment estops the appellee from showing the facts and circumstances of the settlement. As is the case with virtually every proposition that has no moral basis, there are many vulnerable phases to this proposition that, we take it, need only be stated, and need no argument in support of their existence.

In the first place, the contract between the appellant and the appellee required the appellee to indemnify appellant against such loss as he might suffer under a claim for damages by reason of the operation of appellant’s automobile, provided the appellant did not, without appellee’s consent, voluntarily assume or agree to the loss by way of compromise of the claim. Appellant did voluntarily, without the appellee’s consent save upon condition that appel-lee should disburse only three thousand dollars, assume such loss by compromise, and paid the amount, of the loss under the compromise and not under the judgment which was meant only as a form of record receipt, entered, as appellant expressly agrees, sixteen days after appellant had paid out the money under the compromise and not under the judgment. In this unquestionably sound view of the case, there is no attack directly or indirectly upon the judgment in the form of a jury and verdict. Insofar as that judgment may be concerned, the appellant could maintain no action at all against the appellee; for having paid out nothing under the judgment as he himself admits, he sustained no loss by reason of it, and, therefore, could obtain no indemnification by reason of it. The un-contradicted proof in the record shows that the appellant suffered no loss by reason of the judgment (and loss is the -criterion of indemnification) but purely by reason of the unauthorized compromise.

Since the matter is made one purely of evidence by the appellant in his brief, we call the court’s attention to the fact his position would be the same had a mere written in*576strument reciting a consideration of thirty-five hundred dollars for an accord and satisfaction been drawn and executed between the appellant and the heirs of Mr. Kelly. The rule is the same. You cannot vary the terms of a written instrument by parol. And, so, would argue the appellant with equal cogency, the appellee could not show that its agreement was to pay only a part of the consideration, because the agreement was previous to the execution of the instrument, and appellant’s case could not be inquired into beyond the four corners of the instrument. This, of course, is neither sense, nor law, nor justice. Yet it is the substance- of appellant’s position here which he contends, is purely a question of technical evidence-.

Again, and from another proper viewpoint, there is no attack upon the judgment here. The judgment could have been for no more and no less than thirty-five hundred dol-sixteen days after the money was paid. Hence, the judg-lars, because it was based upon the amount of the unauthorized compromise, and was entered as a matter of form ment was due to the fact that the appellant took the conduct of the Kelly case from the appellee in violation of the policy provisions. If the case were rested purely upon the judgment, and appellant “given a dose of his own medicine,” the appellant would not be entitled to recover anything in this cause. But the appellee, less willing than the appellant to resort to technicality in an effort to defeat justice, is willing to treat the case fairly as it did in the court below, and to regard it as though it relinquished control of the litigation in Lincoln county upon condition that its liability should not exceed three thousand dollars. There was purely and simply a novation of the contract of indemnity insurance, based upon a consideration universally recognized as valid, and appellant is merely unable to distinguish between an attack upon a judgment and extrinsic proof as to the amount that appellee had agreed to disburse in satisfaction of a claim on account of which the judgment happened to be entered, but was not based. We submit that we have not attacked this judgment taken, as *577shown by the uneontradicted proof, as a mere record satisfaction of a claim, but have proven in defense (it is agreed in the record that such was the case) that appellee’s contract with appellant was to pay only three thousand dollars towards settlement of the claim of the heirs of the confederate veteran slain by appellant’s automobile.

Further, while we do not attack this judgment, in answer to the appellant’s shout of record verity (?) we say that an universal exception to the rule is that the doctrine can never he relied upon by a party to a cause when its invocation would operate to effectuate a fraud. And who would say, after reading the appellant’s agreement of facts, the letters, and other testimony embodied in the transcript of the record, that a substantial injustice and grossly unfair advantage would not be taken of the appellee by the appellant if the appellant’s position should be sustained.

Confidently believing that no cause not based upon law and substantial honesty can prevail in this court, we beg to rest this case here, and respectfully ask that the judgment of Judge Potter rendered in the trial of the cause below be affirmed.