MAHMOUD NOUREDINE and INTRUSCO CORPORATION, Appellants, v. EMMANUEL JOHNSON, Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: November 22, 1982. Decided: February 3, 1983.
- Where a court joins a party upon motion of another party or on its own initiative, jurisdiction can be obtained over the person so joined, by sending copies of the complaint and other relevant documents, including the minutes and ruling of the court adding such party, along with a letter informing him of the joiner and requesting that he/she should file an answer in ten days. Such a notice serves the same purpose as summons.
- Every document which is received, marked and confirmed by court at the trial, must be submitted to the jury for what it is worth.
- One who is injured in his property by the wrongful act of another may recover for any pecuniary loss sustained by reason of such injury. He is also generally entitled to recover compensation for discomfort, annoyance, and personal inconvenience, where these are the proximate result of the defendant’s wrong . . . The remuneration must be commensurate with the plaintiff’s interest in the property and hence will vary accordingly. In ascertaining the damages to be allowed, the jury may consider all the circumstances connected with the injury.
- Where the amount of general damages awarded is not commensurate with the discomfort, annoyance and personal inconvenience, considering the evidence adduced at the trial, the Supreme Court may modify the judgment to conform with the evidence.
- Service of process is for the purpose of notifying a defendant of the claim or charge against him so that he may properly prepare himself to answer it. It is this notice which gives the court jurisdiction to proceed. To say that process confers jurisdiction means that it empowers the court to exercise authority derived from law.
An action of damages was instituted against co-appellant, Mahmoud Nouredine, in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. He moved the court to have his insurer, Intrusco Corporation, joined which was granted. Accordingly, Intrusco was served with the complaint and other relevant documents along with a letter from the clerk of court requesting it to file an answer within ten (10) days on orders of the court, which it did within the period prescribed.
Law issues were disposed of and a regular trial had with the aid of a trial jury. From a final judgment of the court, Intrusco, the party ordered joined, noted its exceptions and announced an appeal to the Supreme Court. Mahmoud Nouredine, did not announce an appeal. Intrusco contends in its bill of exceptions that the court did not have jurisdiction over it because it was not summoned, but rather it only received a letter from the clerk of court with a copy of the complaint, and that a court can only assume jurisdiction over a person by a writ of summons and not by letter. It also contended that there was a compromise reached between Intrusco and the appellee under which Intrusco agreed to repair plaintiff’s car, and plaintiff agreed to waive all claims. Intrusco further contended that the amount of general damages awarded by the jury was illegal because the measure of damages for injury to an automobile is the cost of restoring it to its condition immediately prior to the accident.
The Supreme Court held that where a party is ordered joined by the court, jurisdiction over the party can be obtained by sending a letter to the party informing him or her of his/her joiner, along with the complaint and supporting documents and requesting him to file an answer within 10 days. The Court also held that Intrusco did not produce sufficient evidence to establish the existence of a compromise or a waiver of the claims by appellee since only one witness testified to this fact, which was denied by the appellee. On the issue of general damages awarded, the Court said that the jury did not act illegally in awarding general damages but the amount awarded should not have been more than $5,000.00, commensurate with the discomfort, annoyance and the inconvenience suffered by the appellee. Accordingly, the Supreme Court affirmed the judgment with modification that the general damages be reduced from $10,000.00 to $5,000.00.
John T. Teewia appeared for appellant. Stephen Dunbar, Sr. appeared for appellee.
MR. JUSTICE MORRIS delivered the opinion of the Court.
This case came on appeal from the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, where appellee instituted an action of damages against Co-defendant Mahmoud Nouredine. Co-defendant Mahmoud Nouredine in his answer requested the court to add his insurance company, Intrusco Corporation, as a party defendant. The request of Co-defendant Mahmoud Nouredine was granted and Intrusco Corporation was made a co-defendant and served with copies of the complaint, answer, and reply with the accompanying exhibits. It was allowed ten days to file its answer. The court heard and disposed of the law issues raised and ruled said case to trial with the aid of a trial jury. Trial was regularly had and the jury returned a verdict in favor of the plaintiff/appellee awarding him $810.00 as special damage and $10,000.00 as general damages. The co-defendant/appellant, Intrusco, Corporation appealed to this Court from the final judgment affirming and confirming the verdict of the empaneled jury. Hence, this case is now before us for final determination. We wish to note that even though Co-defendant Mahmoud Nouredine was represented by a counsel at the trial, he did not appeal from the final judgment. Co-defendant Intrusco Corporation has filed a ten-count bill of exceptions for our consideration.
In count one of the bill of exceptions Co-defendant/appellant, Intrusco, contends that the court had no jurisdiction over its person because it was not summoned, but rather, it only received a letter from the clerk of court with copy of the complaint and other relevant documents, and a court can only assume jurisdiction over a person by a writ of summons and not by letter. In counts two, three and four of co-defendant Mahmoud Nouredine’s answer, he asserts that he was insured with Intrusco Insurance Corporation on Broad Street, Monrovia, Liberia, as evidenced by a photostatic copy of the insurance policy which he attached to his answer as Exhibit “A”. He contends in count three that under the law, a party may be added or dropped and therefore he respectfully requests court to join the Intrusco Insurance Corporation, his insurer, as a party defendant in the proceeding so that Intrusco Corporation will meet its legal obligation with plaintiff. In count four, he intimates that it is the responsibility of Intrusco Insurance Corporation who has already paid the repair bill for plaintiff’s car to the Kassouf’s garage to pay plaintiff’s bill of $15.00 per diem for the forty-five days.
Co-defendant Intrusco Corporation filed a seven-count answer in which it raised the following contentions:
- That Intrusco Corporation acknowledges a receipt of a letter dated March 23, 1982 from the clerk of court forwarding the complaint and other relevant documents in the entitled cause of action requesting its appearance or the filing of an answer. It therefore contends that mere letter will not confer jurisdiction of the court over its person, unless by summons; and, since it did not voluntarily appear, no judgment should be rendered to legally bind it.
- That there is no contractual relationship between the plaintiff and Intrusco Corporation, it only being the insurer of the defendant, Mahmoud Nouredine. It also argues that Co-defendant Mahmoud Nouredine, its insured, breached the provision of his policy which specifically provides that “make no statement to anyone, that is, neither admit liability nor assume any obligation and should not reveal the existence of an insurance policy as this invites unnecessary claim.” Therefore, co-defendant did not conform to the policy when he wrote a note dated September 24, 1977 attached to the complaint obligating himself to the plaintiff. For this reason, Intrusco is not liable.
- That there is no provision in the policy between the defendant and the insurer, Intrusco, no rule of court in this jurisdiction authorizing the insured to sue the insurer or to join the insurer in an action, and there is no privity of contract between the plaintiff and the Intrusco Corporation. Intrusco should not therefore be joined as a party.
- That according to the facts relative to the accident, defendant’s vehicle was already parked when plaintiff ran into, hit and damaged defendant’s car; and, that without any police investigation charging the defendant, the defendant wrote a promissory note obligating himself to pay per diem for loss of use of the car to plaintiff. Therefore there is collusion between plaintiff and defendant.
- That when plaintiff requested Intrusco Corporation to pay the per diem for the loss of use of plaintiff’s car Intrusco Corporation refused on the ground that the defendant was not responsible for the accident. However, Intrusco Corporation and plaintiff agreed to compromise the claim and, as a result, Intrusco Corporation paid the repair bill and plaintiff accepted the damaged car and also waived the claim.
- That plaintiff having waived the loss of use of his car, he was barred and estopped from claiming against Intrusco Corporation.
Parties may be added by order of any court except the Supreme Court on motion of any party or on its own initiative at any stage of the action on any terms that are just. Civil Procedure Law, Rev. Code, 1: 5.54. The Civil Procedure Law also provides as follows:
“Parties who should be joined, persons (a) who ought to be parties to an action if complete relief is to be accorded between the persons who are parties to such action, or (b) who might be inequitably affected by a judgment in such action shall be made plaintiffs or defendants therein.” Ibid.,1: 5.51.
The court rightly joined Co-appellant Intrusco Corporation because she would be adversely affected by the judgment as insurer of Co-appellant/defendant Mahmoud Nouredine. Where a court joins a party on the request of another party or on its own initiative, it is sufficient to send copies of the complaint and other relevant documents attached to said complaint, the minutes and ruling of the court adding such party, to the party so joined by order of court. The party so added shall be given the statutory period of ten days from the date of the receipt of such orders to file his answer. We fail to agree with the argument advanced by Co-appellant Intrusco Corporation that it was not served with summons and therefore the court lacks jurisdiction over its person, because a summons is in the nature of a notice to a defendant informing him or her that an action has been filed against him or her which he or she must answer within a specified time, or judgment will be taken against him/her.
In the instant case, the clerk of court wrote a letter to Co-appellant Intrusco Corporation indicating that by orders of court he was transmitting the complaint, answer and reply with all the exhibits and relevant documents and requesting Co-appellant Intrusco Corporation to file its answer on or before April 3, 1978 since the letter was written on March 23, 1978. We are of the opinion that such notice serves the same purpose as a summons in fulfillment of the requirements of sections 5.51 and 5.54 of the Civil Procedure Law and therefore enabled the court to acquire jurisdiction of the person of Co-appellant Intrusco Corporation. The constitutional guaranty of due process of law means notice and opportunity to be heard and to defend before a competent tribunal vested with jurisdiction over the subject matter of the cause. Once a notice is given to a defendant of the action or proceedings against him or her, and he/she is given thereby opportunity to appear and be heard, the court has jurisdiction to proceed to judgment against him or her if the court has jurisdiction over the subject matter. The last paragraph of the notice (letter) is quoted thus:
“As in keeping with the orders of court as will be more fully seen from the minutes of court hereinabove referred to you will please file an answer between now and 3rd day of April A.D. 1978, and that upon your failure so to do, judgment by default will be rendered against you.”
Co-appellant Intrusco Corporation then filed her answer on April 1, 1978, the ninth day after the date of the letter or notice. The court therefore did acquire jurisdiction of the co-defendant, Intrusco Corporation. “The principal object or purpose of original process is to give to the party to whom it is addressed notice of the proceeding against him. It is the means by which he is afforded opportunity to appear before and to be heard by the court in the defense of his person, property, and rights, and thereby have them safeguarded. Service of process is for the purpose of notifying a defendant of the claim or charge against him so that he may properly prepare himself to answer it. It is this notice which gives the court jurisdiction to proceed. To say that process confers jurisdiction means that it empowers the court to exercise authority derived from law.” 62 AM. JUR. 2nd, Process, §2.
It is a principle that lies at the foundation of all jurisprudence in civilized countries that a person must have an opportunity to be heard before a court deprives him of his rights. Any other doctrine would be antagonistic to our form of government. In the case at bar, Co-appellant, Intrusco Corporation, was given the opportunity to appear and defend its cause and which it did. Counts one and two of the bill of exceptions are therefore not sustained.
The contentions of Co-appellant Intrusco Corporation as raised in its answer that Co-appellant Mahmoud Nouredine’s car was parked when appellee ran into, hit and damaged Co-appellant’s Nouredine’s car and that there was no police investigation charging the co-appellant are not supported by the records. To the contrary, there is a police report which charged that the co-appellant drove recklessly and ran into appellee’s car which had stopped to await the release of a heavy traffic ahead. Intrusco Corporation never testified to these allegations in her answer even though the appellee testified to them. Hence, they cannot be conceded.
In count three of the bill of exceptions, Co-appellant Intrusco Corporation argues that appellee and Intrusco agreed that Intrusco would pay the repair bill and appellee would waive the payment of per diem in-take in the sum of $810.00 which was testified to at the trial and not rebutted. Therefore, the $810.00 awarded by the jury for per diem was illegal. This is the testimony of the lone witness of Intrusco Corporation, in person of one Charles Walsh:
“Sometime last year, Mr. Nouredine came into our office to report an accident involving his vehicle and that of Mr. Johnson. Later on, Mahmoud Nouredine came into the office with Johnson to Intrusco stating that he had an accident and which he was responsible for therefore we should take care of Mr. Johnson’s car. The accident report was referred to our late President, Richelieu W. Dennis and to the Claims manager, Gabriel Oniyama. So we went through the records of the accident, and the late Mr. Dennis then instructed that we were not to repair the vehicle because he witnessed the accident and Mahmoud Nouredine, as far he was concerned, was not responsible for the accident. Later on, Mr. Johnson became upset over the rejection of the claim and said that Mr. Nouredine had signed a promissory note holding himself responsible for the accident. Not to prolong the whole thing, Mr. Dennis, myself and Mr. Nouredine told Mr. Johnson, in the presence of the Claims manager, Gabriel Oniyama that we can repair the vehicle, but Mr. Johnson must forego the loss of fuel. This was agreed upon verbally by Mr. Johnson; thereafter, we sent his vehicle to the garage to be repaired. I rest.”
According to this testimony of Witness Charles Walsh, Messrs Nouredine, Dennis, Oniyama and he were present when they told Mr. Johnson that Co-appellant Intrusco would pay the repair bill for the car but the appellee must forego the loss of fuel oil or loss of use which was verbally agreed upon by the appellee. When Co-appellant Mahmoud Nouredine took the witness stand he was cross-examined by Co-appellant Intrusco Corporation on the issue as follows:
“Ques: So then it is a fact that you were present when it was agreed upon between the plaintiff and Intrusco that Intrusco should only pay the repair bill of the taxi that was involved in the accident?
Ans: Intrusco asked me to bring Mr. Johnson to their office which I did and I left Mr. Johnson there and they agreed that they were taking care of everything; and I left Mr. Johnson there and went about my business.”
Intrusco then rested with the cross-examination. The appellee on the other hand denied ever reaching any agreement with Co-appellant Intrusco. No other witness testified for Co-appellant Intrusco even though the claims manager, Mr. Oniyama, was present at the alleged compromise; and the appellee did not execute a release. In view of these prevailing circumstances, count three cannot be sustained and it is hereby overruled.
Co-appellant Intrusco contends in count four that the award of general damages by the jury is illegal because the measure of general damages for injury to an automobile is the cost of restoring it to its condition immediately prior to the accident and cited the cases Firestone plantations Company v. Greaves, [1947] LRSC 5; 9 LLR 250, 266 (1947) and Kashouh v. Manly-Cole, [1964] LRSC 11; 15 LLR 554 (1964). In the case of Firestone plantations Company v. Greaves, the plaintiff was awarded the sum of $2,275.00 as damages for deprivation of his car at the rate of ten dollars per diem plus $800.00 as the value of the said car. The plaintiff never proved at the trial how he arrived at the rate of ten dollars per diem nor did the jury’s verdict indicate how the $2,275.00 was arrived at and for what purpose. Hence, the award of $800.00 as the value of the car was affirmed by this Court and the case remanded for proof or disproof of the damages claimed. With regard to Kashouh v. Manly-Cole, the jury awarded $2,900.00 as the value of the bus even though it was repairable and there was an estimate of $1,067.00 for the repairs of said bus submitted by the garage, $540.00 as 18 days’ earnings of the said bus and $150.00 as legal fees. The court held that legal fees and costs of litigation are not regarded as included in the damages sustained by a complaining part. Therefore, the $150.00 for counsel fees was denied. The $540, 00 representing the 18 days’ earnings was rejected by this Court because the plaintiff did not prove at the trial how the $540.00 was arrived at as 18 days’ earnings. The $2,900.00 as the value of the bus could not be considered by this Court because the bus was not totally destroyed, and even if it were completely destroyed, the value would have been its market value at the time of the accident. The Court, however, awarded the $1,067.00 which was the estimate for the repairs submitted by the garage. In the case at bar, the appellee pleaded and proved the $810.00 as special damages at the rate of $18.00 per day for 45 days. This Court also held in the case Firestone plantations Company v. Greaves, supra.
“One who is injured in his property by the wrongful act of another may recover for any pecuniary loss sustained by reason of such injury. He is also generally entitled to recover compensation for discomfort, annoyance, and personal inconvenience, where these are the proximate result of the defendant’s wrong. . . .The remuneration must be commensurate with the plaintiff’s interest in the property and hence will vary accordingly. In ascertaining the damages to be allowed, the jury may consider all the circumstances connected with the injury. . .”
The award of general damages is legal in view of the law just recited.
Counts five(5) and six (6) are not conceded because Co-appellant Mahmoud Nouredine himself admitted being responsible for the accident and he further admitted writing the promissory note. Count seven (7) crumbles and is not sustained because in count five of Co-appellant Intrusco Corporation’s answer it contended that the Co-appellant Nouredine’s car was already parked when appellee’s car ran into, hit and damaged it, and that without any police investigation charging the co-appellant, the co-appellant wrote the promissory note proferted by appellee which count was ruled to trial. It was therefore necessary and proper to admit the police report into evidence to prove or disprove the contention of Co-appellant Intrusco Corporation.
Count eight of the bill of exceptions has reference to the judge’s charge to the jury which was not excepted to by any of the counsel. Hence, this point cannot be entertained as in keeping with Civil Procedure Law, Rev. Code 1: 22.9. Count nine of the bill of exceptions is overruled because every document which is marked and confirmed by court at the trial must be submitted to the jury for what it is worth.
Count ten (10) simply, relates to the confirmation of the verdict and the denial of the motion for new trial which we maintain are not reversible errors since there was nothing in the motion for new trial that would warrant the setting aside of the verdict which conformed to the evidence adduced at the trial.
Since according to the law supra one who is injured is entitled to recover compensation for discomfort, annoyance and personal inconvenience, we hold that the jury did not act illegally in awarding general damages but the amount should not have been more than $5,000.00 to commensurate with the discomfort, annoyance and the inconvenience suffered by the appellee in conformity with the evidence adduced at the trial. We therefore hold in modifying the judgment of the lower court that the amount of general damages be and the same is hereby ordered reduced to $5,000.00. Townsend v. Cooper, [1951] LRSC 16; 11 LLR 52(1951); Johns v. Republic, 13 LLR 143 (1958); Williams v. Tubman, [1960] LRSC 47; 14 LLR 109 (1960); and Holder v. , American Life Insurance, 29 LLR 142(1981), Supreme Court opinions, March Term, 1981.
In view of all that we have narrated, the laws relied upon and the accompanying circumstances, we have no other alternative but to confirm the judgment. The judgment of the lower court is hereby affirmed and confirmed with the modification that the amount of the general damages is hereby ordered reduced from $10,000.00 to $5,000.00. And it is hereby so ordered.
Judgment affirmed