BEFORE BOWLING, HAWKINS AND SULLIVAN
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 B. Thomas under the financial responsibility laws of the State of Mississippi, particularly, what is hereinafter discussed and known as the" omnibus clause. "
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. "
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 insurnace 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 9, 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 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 ...