459 S.W.2d 253 (Mo. 1970), 55091, Wells v. Hartford Acc. & Indem. Co.

Docket Nº55091.
Citation459 S.W.2d 253
Party NameJames WELLS, individually and as next friend for Jewel Wells, Edith Wells, Tony Wells and Elaine Wells, minors, Plaintiffs-Respondents, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Defendant-Respondent, Preferred Risk Mutual Insurance Company, a corporation, Defendant-Appellant, Lester Riley, Defendant-Respondent.
Case DateOctober 12, 1970
CourtSupreme Court of Missouri

Page 253

459 S.W.2d 253 (Mo. 1970)

James WELLS, individually and as next friend for Jewel

Wells, Edith Wells, Tony Wells and Elaine Wells,

minors, Plaintiffs-Respondents,

v.

HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation,

Defendant-Respondent,

Preferred Risk Mutual Insurance Company, a corporation,

Defendant-Appellant,

Lester Riley, Defendant-Respondent.

No. 55091.

Supreme Court of Missouri, En Banc.

October 12, 1970

Page 254

As Modified on Court's Own Motion Nov. 9, 1970.

Page 255

Jack H. Ross, Coleman, Ross & Cekovsky, Clayton, for plaintiffs-respondents.

Donald L. James, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendant-appellant.

ROBERT E. HOGAN, Special Judge.

Plaintiff James Wells and his four minor children were injured in a collision between Wells' automobile and a truck being driven by defendant Lester Riley. Plaintiffs brought suit for personal injuries against defendant Riley and obtained a judgment in the sum of $2,000 in favor of plaintiff James Wells, and judgments in favor of each of the minor plaintiffs in the sum of $750. Subsequently, plaintiffs brought this action for a declaratory judgment, seeking to establish either: (1) that defendant Hartford was liable under the omnibus clause of its automobile liability policy covering the vehicle being driven by defendant Riley, or (2) that defendant Preferred Risk was liable under the uninsured motorist provisions of its automobile liability policy issued to plaintiff James Wells. A trial to the court resulted in a finding that defendant Preferred Risk was liable on its policy. Preferred Risk appealed to the St. Louis Court of Appeals, which affirmed the judgment. On application of defendant Preferred Risk, the appeal was ordered transferred here after opinion pursuant to the provisions of Mo. Const. Art. V, Section 10, V.A.M.S., and Rule 84.05, V.A.M.R. We are therefore required to decide the case as an original appeal, whatever the underlying reason for transfer, Fizette v. Phillips, 357 Mo. 947, 951--952, 211 S.W.2d 728, 730--731(1) (2), and even though we may agree with the Court of Appeals, Beetschen v. Shell Pipe Line Corporation, 363 Mo. 751, 755, 253 S.W.2d 785--786(1), as we do in this case.

As material here, the facts are that the plaintiffs were involved, and presumably injured, in an automobile accident which took place in the City of St. Louis on September 13, 1964. Plaintiff James Wells was driving his own car, and his children were riding with him. Defendant Riley was driving a truck which belonged to his employer, a concern known as Arthur Enterprises, Inc. Mr. Wells filed suit to recover damages for his injuries and those of his children, originally against Arthur Enterprises; later, an amended petition was filed joining Mr. Riley as an additional defendant.

The original action was filed, apparently, on October 6, 1964. On November 30, 1965, plaintiff James Wells and his wife executed a document styled 'Contract to Limit Recovery on Judgment to Specified Insurance Contract.' Obviously intended to bring plaintiffs and defendant Riley within the operation of Section 537.065, RSMo (1969), V.A.M.S., the contract recites that plaintiff Wells and his wife, 'on behalf of themselves and their minor children * * * and in consideration of the sum of $1.00 and other valuable consideration paid to them by the defendant Lester Riley * * * do * * * agree that in the event of a judgment against Lester Riley in this cause of action neither they nor any person, firm or corporation claiming by or thrpough them will levy execution,

Page 256

by garnishment or as otherwise provided by law, except against any insurer providing liability coverage or uninsured motorist coverage on either of the vehicles involved or the operators or persons therein * * *.' It further recites that Wells and his wife agree to indemnify Riley in case of 'action or cause of action' against him on behalf of the children. This contract is signed and sworn to by Wells and his wife.

On May 10, 1965, defendant Riley was made a party to the suit. On June 22, 1965, counsel for the plaintiffs sent a long letter to defendant Hartford's office in St. Louis, summarizing the plaintiffs' position with respect to the pending litigation. The letter recites the court in which the litigation is pending, the names of the parties, and the number assigned to the case. In general, the letter goes on to state counsel's understanding that Hartford's position was that its policy did not cover Riley at the time of the accident, and that Hartford had indicated it did not intend to appear. Counsel gave it as his view that Riley's employer was not liable, but asserted that he did believe Mr. Wells '* * * (has) a cause of action against Lester Riley individually and we * * * advise you and all other parties to whom this letter is directed, that it is our intention to pursue that cause of action * * * to judgment.' Mr. Ross went on to state his further view that if Hartford's policy was not applicable, then it would appear that Preferred Risk's was, and gave notice that a claim would be made on Preferred Risk if Hartford's policy did not cover Mr. Riley at the time of the accident. Counsel stated in his letter that he was enclosing copies of both parties' pleadings, and further offered '* * * to furnish (Preferred Risk) copies of any other documents arising out of or in connection with this litigation which they may request.' Preferred Risk was asked to acknowledge receipt of the letter. It was stipulated at the trial of this case that Preferred Risk had received a copy of the letter.

On February 3, 1966, plaintiffs' counsel gave notice to both Hartford and Preferred Risk that he intended to 'request judgment' against defendant Riley only on February 23. Again it was stipulated that Preferred Risk received a copy of this letter. On February 23, 1966, plaintiffs reduced their claim against Mr. Riley to judgment. The...

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