MANO INSURANCE CORPORATION, by and thru its representative, Appellant, v. PICASSO CAFETERIA, by and thru their General Manager, MADAM MANUELA PADILLA VARGAS, Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: March 27, 1995. Decided: July 28, 1995.
1. There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits heretofore existing, are abolished. Civil Procedure Law, Rev. Code 1:1.3
2. If a court has obtained jurisdiction over the parties, an application for relief shall not be dismissed because it is not brought as an action or special proceeding or motion, whichever may be proper; but the court shall make whatever order is required for its proper prosecution.
3. A court of equity upon obtaining jurisdiction of an action will retain it and can administer full relief, both legal and equitable, so far as it pertains to the same transaction or the same subject matter, including a matter of dispute over which courts of law and courts of equity have concurrent jurisdiction.
4. When hostilities attain dimensions which interfere with the exercise of the jurisdiction of the existing government in some of its territorial districts, a state of war exists.
5. A civil war is an armed struggle between opposing and contending forces of the nation for the control of the government.
6. The protection of war is not accorded to those engaging in an insurrection or rebellion against the constituted authority, unless a state of belligerency is recognized by the existing government.
7. The civil conflict in Liberia was an armed one between opposing and contending forces; hence, what obtained in Liberia was a civil war and not a civil commotion.
8. Mere allegation is not proof; and the burden of proof falls on the shoulder of the party making an allegation.
9. When the facts adduced at a trial do not sufficiently preponderate in proof of a complaint to authorize the award of special damages, the judgment will be reversed.
Appellee, operator and owner of Picasso Cafeteria and Spanish Gallery, sought to recover in the Civil Law Court, Sixth Judicial Circuit, Montserrado County, on four insurance policies contracted with appellants in the total amount of US$774,000.00. From a judgment in favour of the appellee, appellant noted its exceptions and appealed to the Honourable Supreme Court. The appellant alleged that the appellees had instituted the wrong form of action; that there was no valid contract between the parties; and that even if there was one, the appellant’s performance under said contract was excused by virtue of the civil war. The Supreme Court, upon review of the records, overruled the contention of appellant with respect to the form of action and held that the assumption of jurisdiction by the lower court and the granting of the relief sought in equity and at law, were supported by law. The Court found from the records that the US$774,000.000 awarded to appellee represented the total face value or coverage for the four policies for the Spanish Gallery and the Piccasso Cafeteria. The Court upheld the appellant’s contention that the two policies covering the Spanish Gallery in the amount of US$600,000.00 were cancelled and, hence, the appellee could not claim under them, thus leaving only the two policies on the Picasso Cafeteria in the amount of US$174,000.00. Accordingly, the Court held that given the cancellation of the two policies covering the Spanish Gallery, the trial court erred in awarding the appellee $774,000.00, which was in excess of the value of the two remaining policies on the Picasso Cafeteria. The Court also noted that even if the four insurance policies were in effect, the appellee had failed to establish the pecuniary value of the injury suffered to warrant the award of $774,000.00, which was merely the aggregate or face value of the four policies.
As to whether or not the appellant was excused from performance under the Picasso policies, the Court held that the damages for which compensation was sought arose from the general effects of the civil war, which was not covered by the policies, as opposed to a mere insurrection. The Court therefore reversed the judgment.
Cyril Jones and Theophilus Gould appeared for the appellant. Isaac Wiles and R. F. McFarlandappeared for the appellee.
MR. JUSTICE HNE delivered the opinion of the Court.
We have gathered from the records in this case that the appellee filed a bill in equity against the appellant for discovery and equitable relief. The subject of the action involved insurance contracts purchased from the appellant by the appellee. Specifically, the appellee was claiming under four (4) insurance contracts for losses sustained by it in 1990. The records show that two of the policies were in favor of the Spanish Gallery, each in the amount of $300,000.00, totalling $600,000.00, and two in favor of Picasso Spanish Cafeteria for US$144,000.00 and US$30,000.00, respectively, totalling $174,000.00. The total claim in the appellee’s petition to the Civil Law Court was the aggregate coverage amount of the four (4) policies, that is $774,000.00.
The appellant, in its returns to the petition, averred that two of the policies, that is, the ones issued to Spanish Gallery for US$300,000.00 each, were cancelled on December 1, 1989, or alternatively, would have expired on May 18, 1990, before the civil war reached Monrovia. The appellant also claimed force majeure or impossibility of performance during the civil war.
Following the disposition of the law issues, the trial judge ruled the case to trial. At the conclusion of the trial, the jury awarded the appellee US$774,000.00 as special damages and US$250,000.00 as general damages. A judgment was entered confirming the verdict. The appellant has come to this Court for appellate review after complying with the jurisdictional steps for the perfection of an appeal.
It should be noted from the onset that the records show that Spanish Gallery and Picasso Cafeteria are two separate and distinct business entities which were run by the appellee. One was a boutique (the gallery) and the other a cafeteria. The insurance contracts themselves were never produced. What the records consist of, and considered as insurance contracts, are cover notes, invoices and endorsements.
The endorsements, which were taken as the insurance contracts for Spanish Gallery, stated:
“It is hereby agreed and understood that the insurance by this policy is renewed with effect from the 20t h day of May 1989 to the 19t h day of May, 1990.” The second endorsement, in the name of the Spanish Gallery, contains the same statement showing the validity period of May 19, 1989 to May 18, 1990. The face value of the policy in each instance was US$300,000.00. The appellant says, however, that these policies were cancelled on December 1, 1989, with the return of the premiums of $1,050.00 and $633.35, totalling $1,683.35 which was paid to the appellee. The appellant paid this amount by check dated 1St February 1990 to the appellee, and which it introduced into evidence. The check bears the endorsement of the general manager of the appellee for encashment of the check. The appellee alleged though that this payment was to cover a claim for belts that were damaged in a consignment of goods which it received. There is, however, an insurance survey report by Lloyd’s covering a consignment of goods received by Spanish Gallery on 19t h July, 1987. The report indicates damage of a wet carton but makes no specification of the goods that were damaged in the wet carton.
The policies relating to Picasso Spanish Cafeteria are two cover notes which state the period of the insurance coverage as 1/12/89 to 3/11/90 in both cases. One is for $144,000.00 and the other for $30,000.00, totalling $174,000.00. To substantiate the existence of these policies, two receipts, issued by the appellant to Picasso Spanish Cafeteria for $1,920.00 each, were put in evidence by the appellee.
The issues which we are to decide are:
1. Whether the appellee brought the right form of action?
2. Whether there was a valid insurance contract between the parties?
3. Whether the performance under the contract was excused by the civil war?
4. Whether the jury’s verdict was supported by the evidence in the case?
The appellant avers that while our Civil Procedure Law has abolished all forms of action and there is no longer any distinction in suits at law and suits in equity, the substantive remedies at law and in equity are still distinguished. It says that the present action is in equity but that it sought to enforce rights which are in contract and which should be sought at law instead of through an equitable remedy. The appellant says further that the appellee has sought a common law writ by instituting a bill in equity for discovery and equitable relief; and that the trial court lacked jurisdiction over this form of action, and should therefore have dismissed the same.
Our Civil Procedure Law provides that there is one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits heretofore existing, are therefore abolished. Civil Procedure Law, Rev. Code 1:1.3 Our Civil Procedure Law also provides that if a court has obtained jurisdiction over the parties, an application for relief shall not be dismissed because it was not brought as an action, special proceeding, or motion, whichever may be proper, but that the court shall make whatever order is required for its proper prosecution. Id, 1.2. Given these provisions of the law, the contention of the appellant that the action should have been dismissed cannot be upheld.
As to the contention that the remedy which the action seeks to secure is an equitable one, but that the rights that the appellant seeks to enforce are rights growing out of contract, it is our view that discovery proceedings are indeed grounded in equity. However, we find in our case law that a court of equity, upon obtaining jurisdiction of an action, will retain it and can administer full relief, both legal and equitable, so far as it pertains to the same transaction or the same subject matter, including a matter of dispute over whether courts of law and courts of equity have concurrent jurisdiction. Benson v. Johnson, [1974] LRSC 55; 23 LLR 290, 299 (1974). The assumption of jurisdiction by the lower court and the granting of the relief sought in equity and at law are therefore supported by law. Consequently, the contention of the appellant in this respect is untenable.
The appellant contends further that the policies under which the appellee claimed had expired or been cancelled. The records show that the two policies issued to Spanish Gallery were the subject of cancellation credit notes and for which return premiums were paid in the amount of $1,683.35 by Tradevco check, dated 1 February 1990, which the appellee encashed. Further, the policies carry expiration dates of May 18, 1990, and May 19, 1990, respectively. The records contain credit notes for $1,050.00 and $633.35, respectively, each dated January 29, 1990.
Moreover, according to the trial records, when the appellant’s first witness, Madam Manuela Padilla was asked whether policy No. 5/BB/8800010 for the Spanish Gallery was cancelled and credit note, dated 28 January 1990, was issued in her favour, she answered that she could not remember. When asked further whether a check dated 1 February 1990, issued to Spanish Gallery, represented final payment and a cancellation of the policy of Spanish Gallery, and if she still maintained that the policy of Spanish Gallery was still in force, she answered that the check was in payment of a claim she made for damaged belts contained in a consignment of goods which she brought to Liberia in November of 1987. (See Minutes of 34 th day’s jury session, Friday, May 6, 1994, sheets two and three).
The trial records also show that the appellant’s sixth witness, Alfred D. Sirleaf, an employee of the respondent/ appellant, testified that he was instructed by his boss to issue a return premium to Spanish Gallery for fire and burglary; that he issued a check which he turned over to his boss, who turned it over to Spanish Gallery; and that the check number 796217 for $1,683.35 was based on voucher 4174. (See Minutes of 56th day’s jury session, Thursday, June 9, 1994, sheets two and four).
Based upon the aforementioned facts, we hold that the records support the contention of the appellant that the Spanish Gallery policies were cancelled. All the contentions advanced by the appellee that the Gallery policies were valid and enforceable must therefore crumble.
In a letter dated February 4, 1992, the appellee, through its general manager, wrote the appellant informing it that an unknown person or persons had burst into the cafeteria and burglarized it on June 25, 1990 and had gotten away with properties and items insured under its insurance policy. The letter reads as follows:
The Acting General Manager MANO Insurance Corporation Front Street, Monrovia Liberia February 4, 1992 Dear Sir: Re: Claiming losses from Burglary, Looting, and Vandalism
I wish to bring to your attention losses I suffered under my policy in 1990.
On June 25, 1990, unknown persons burst into the cafeteria and burglarized and got away with properties and items under my insurance policies.
In the cafeteria, unknown persons also got away with cash in safe which amounted to US$7,120.00 and L$7,550.00.
Due to the complexity of the matter, I have resulted to appointing the Independent Broker Corporation to oversee my interest and to submit a comprehensive loss adjuster’s report that will be unbiased and acceptable to both parties.
Because I did not receive my policies before the loss, the policy numbers of the businesses in question is not mentioned. However, cover note numbers are as follows.
1. Picasso (Spanish Cafeteria)
A. FP00038
B. BUR00007
2. Spanish Gallery
A. 5/FF/8700019
B. 5/BB/80010 I/We look forward to your usual kind cooperation.
Sincerely yours, Manuela Padilla”
The records also carry a report, dated July 4, 1991, stating that Madam Manuela Padilla, the appellee’s manager, reported on June 24, 1991 that the Picasso Cafeteria was burglarized, looted and damaged during the civil commotion. The report captioned CONFIRMATION CLEARANCE, reads as follows:
REPUBLIC OF LIBERIA HEADQUARTERS OF THE LIBERIA NATIONAL POLICE MONROVIA, LIBERIA YOUR REF. OUR REF. PC-135/C-14ID/’91 July 4, 1991
TO WHOM THESE BRING GREETINGS CONFIRMATION CLEARANCE
This certifies that on June 24, 1991, Madam Manuela Padilla reported to the Liberia National Police that the PICASSO CAFETERIA & RESTAURANT, located on Center Street, City of Monrovia, was burglarized/looted and damaged during the civil commotion.
Immediately thereafter, a team of detectives from the Criminal Investigation Division (CID) was dispatched to conduct an on-the-spot investigation.
Based upon evidence gathered and preserved from the crime scene, the crime of burglary/looting was committed by unknown person(s) who gained entry by forcibly breaking the main door.
Observations revealed that the office door was also broken, thereby gaining easy access to all of the materials, including furniture and fixtures, that were taken away. Vandalism was observed with signs of the discharge of firearms.
Meanwhile, investigation continues. SGD: Col. Joseph F. Blamo ASSISTANT DIRECTOR OF POLICE AFFAIRS APPROVED:
Col. Rudolph B. Flowers
ACTING DIRECTOR OF POLICE
JFB/JJS/mes
Cover note No. FP00038 for Picasso Cafeteria indicates coverage to be: Fire and or lightning, explosion, earthquake, storm and tempest, aircraft, impact, riot and strike, malicious damage, civil commotion and flood. The other cover note, that is, No. BUR0007, for Picasso Cafeteria, states this coverage: Burglary, as evidenced by forcible and violent entry of premises. The face value of the first policy is $144,000.00, and the second is $30,000.00.
The thrust of the appellee’s claim is that it sustained a loss of up to US $774,000.00 as a result of the civil war and therefore should be compensated in that amount. As was stated earlier, this amount is the totality of the face value of the four insurance policies of the Spanish Gallery and the Picasso Cafeteria. We have stated herein that the policies of the Spanish Gallery were cancelled and so could not respond to the appellee’s claim. That leaves the policies for the Spanish Cafeteria which total $174,000.00. The claim letter of February 4, 1992 from the appellee to the appellant and the police confirmation relate to the Spanish Cafeteria only.
The evidence fails to establish the pecuniary value of the injury suffered by the appellee to warrant awards of US$774,000.00 as special damages and US$250,000.00 as general damages. The rule that special damages must be particularly pleaded and affirmatively proved was not met by the evidence which the records evince. The only criterion we see in the award to the appellee is the face value of the totality of the four (4) policies, without more, two of which policies, that is, the policies for the Spanish Gallery totalling US$600,000.00, had been cancelled.
The appellee’s witnesses did not even state in their testimonies the amount which the appellee’s injury represented. What the records show is the admission into evidence of various documents, including letters, invoices, and receipts, without stating in the records any value attached to each of them. There is no showing of what amount the appellee was claiming, other than an attempt to prove the existence of the insurance policies, and to claim their face value.
The appellant advances the argument that the policy did not cover war risk. The two cover notes on the Spanish Cafeteria carry coverage on the one hand for “burglary as evidenced by forcible and violent entry of premises” and on the other hand, “fire and or lightning, explosion, earthquake, storm & tempest, aircraft, impact, riot & strikes, malicious damage, civil commotion and flood.”
The police confirmation/clearance, dated July 4, 1991, certified that on June 24, 1991 Madam Manuela Padilla reported that Picasso Cafeteria & Restaurant located on Center Street, City of Monrovia, was burglarized/looted and damaged during the civil commotion. The cover notes carry the date December 1, 1989 to November 30, 1990 as the cover date. This gives us no doubt that the policy’s validity existed at the time of the loss.
Civil commotion is an uprising of citizens, an insurrection, interference with the powers of government by violent action. BALLENTINE’S DICTIONARY 203 (3′ d ed).
The same book defines civil war as an armed struggle between opposing and contending forces of the nation for the control of the government. This protection of war is not accorded to those engaged in an insurrection of rebellion against the constituted authority, unless a state or belligerency is recognized by the existing government. When hostilities attain dimensions which interfere with the exercise of the jurisdiction of the existing government in some of its territorial districts, a state of war exists. Id, pp. 205.
The appellant urges that the appellee’s claims are not covered by the policies because they do not carry any war coverage. It is the position of the appellee that it took an all risk policy. None of the policies however states an all risk coverage. The appellee says that with the hostilities advancing towards Monrovia, it was within the contemplation of the parties that war coverage was envisaged. Further, that assurances and warranties were given the appellee by the appellant that the appellee would be covered for war risk.
As has been stated earlier, the coverage period of the policies under discussion (the Cafeteria Policies) was December 1, 1989 to November 30, 1990. The set of facts here does not induce a conclusion that it was within the contemplation of the parties that the hostilities would spill to Monrovia because such an anticipation could not have arisen in any person’s mind on December 1, 1989, when the policies were taken. Any rumblings of the fighting did not take place until December 24, 1989.
One of the policies does provide coverage, inter alia, for civil commotion. The police report (confirmation/clearance), one of the documents relied upon by the appellee for its claim, states that Madam Manuela Padilla (the appellee), reported to the police on June 24, 1991 that the Picasso Cafeteria and Restaurant was burglarized/looted during the civil commotion. Cover Note FP0038 carries a cover for civil commotion, among others, and Cover Note BUR0007 carries a cover for burglary, as evidenced by forcible entry. We take it that in either instance, the reported injury took place during the civil commotion, according to the police report. The question then is whether what we have had in the country is a civil commotion or a civil war. We have witnessed an armed struggle between opposing and contending forces for the control of the government as opposed to an uprising by citizens or a mere insurrection. To our mind the civil conflict was an armed one between opposing and contending forces; and so we have a situation of a civil war and not a civil commotion. The loss sustained by the appellee therefore arose from the general effects of the civil war when the appellee’s premises were burglarized or looted. The appellant has averred that the damage suffered by the appellee grew from the civil war and that the policies carry no war coverage. The records support this position of the appellant, which impels us to hold that the appellee’s claim does not find support under the Cafeteria Policies.
We have already stated that there is an absence of proof not only to sustain a damage of US$774,000.00, but also to warrant an award of special damages of US$774,000.00 and general damages of US$250,000.00; and that the award of such damages was to grant the appellee the payment to it of the face value of the combined policies of the Spanish Gallery and the Picasso Cafeteria, which totalled US$774,000.00. In the face of the cancellation of the Spanish Gallery polices, as we held earlier in this opinion, and the unresponsiveness of the Picasso Cafeteria policies to coverage for war risk, as we have just stated, the award of the total face value of the combined Gallery and Cafeteria policies cannot be sustained.
What we find in the records are allegations of damages of US$774,000.00 because the policies were said to carry an aggregate coverage ofUS$774,000.00. Mere allegation is not proof; and the burden of proof falls on the shoulder of the party making an allegation. The burden of proof makes it incumbent upon the plaintiff to prove by a preponderance of the evidence the allegations of fact complained of in the complaint. Knowlden v. Reeves, [1954] LRSC 22; 12 LLR 103, 108 (1954).
The records in this case do not present the quality of evidence or proof to establish the proof of special damages of US$774,000.00 laid in the complaint or petition. When the facts adduced at a trial do not sufficiently preponderate in proof of a complaint to authorize the award of special damages, the judgment will be reversed. Hiad v. Ebric, [1966] LRSC 85; 17 LLR 662, 672 (1966). We are of the opinion, therefore, that the judgment of the court below, not being in harmony with the evidence, should be reversed.
In view of all that we have said, and having consideration for the facts and circumstances of the case and the law governing, the judgment of the lower court is hereby reversed, with costs against the appellee.
The Clerk of this Court is hereby ordered to send a mandate to the lower court directing the judge presiding therein to give effect to this opinion. Costs are ruled against the appellee. And it is hereby so ordered.
Judgment reversed.