Alliance Mut. Cas. Co. v. Bailey

• Decision Date: 06 April 1963
• Docket Number: No. 43049,43049
• Citation: 380 P.2d 413,191 Kan. 192
• Parties: ALLIANCE MUTUAL CASUALTY COMPANY, Appellee, v. Clayton BAILEY, Raymond A. Whitebread, Billy L. Spillman and Robert Liggett, Appellants.
• Court: Kansas Supreme Court

Page 413

380 P.2d 413

191 Kan. 192

ALLIANCE MUTUAL CASUALTY COMPANY, Appellee, v. Clayton BAILEY, Raymond A. Whitebread, Billy L. Spillman and Robert Liggett, Appellants.

No. 43049.

Supreme Court of Kansas.

April 6, 1963.

Syllabus by the Court

1. A declaratory judgment action is not an available remedy where the parties are not in accord as to what the contentions are and the legal question to be presented hinges on the determination of disputed questions of fact.

2. While a declaratory judgment action may be maintained although it involves the determination of a disputed question of fact, it may not be used where a question of fact is the main issue or where the object of the action is to try such fact as a determinative issue.

George V. Allen, Lawrence, argued the cause and was on the briefs for appellant Billy Spillman.

Kermit Beal, Lawrence, was on the briefs for appellant Raymond A. Whitebread.

L. M. Ascough, John A. Bausch, E. Edward Johnson and Elwaine Pomeroy, Topeka, were on the briefs for appellant Clayton Bailey.

Harold E. Doherty, Topeka, argued the cause, James E. Benfer, Topeka, with him on the briefs, for appellee.

PARKER, Chief Justice.

The plaintiff, Alliance Mutual Casualty Company, commenced this action for a declaratory judgment, under the provisions of G.S.1949, 60-3127, against its insured, Raymond A. Whitebread, and other defendants who had claims against the insured as the result of an automobile collision, seeking an adjudication that the insurance policy in question had expired before the collision occurred.

The extensive pleadings, which disclose the conflicting contentions as to the nature of the controversy and the conflicting theories as to how the contentions arose, may be summarized as follows:

The petition sets out the names and addresses of the parties and then alleges:

'Plaintiff alleges that prior to November 5, 1959, it had issued its policy No. 245232 to Raymond A. Whitebread, covering a 1958 Mercury automobile, the policy being for bodily injury and property damage coverage. That said policy expired on November 5, 1959, (the expiration date of the policy), and that a copy of said policy is attached hereto and marked Exhibit A and made a part hereof.

'Plaintiff alleges that on the 18th of November, 1959, Raymond A. Whitebread was operating said vehicle at a point near the intersection of 17th and Topeka Blvd. in Topeka, Kansas. Riding with him in said vehicle was co-defendants Billy L. Spillman and Robert Liggett. That said car was being driven north at about 5:07 p. m. when a 1959 Ford, being driven south by the defendant Clayton Bailey, collided with the vehicle driven by Raymond A. Whitebread. That as a result of said collision, claims for personal injuries have been asserted against Raymond A. Whitebread by the co-defendants Clayton Bailey, Billy L. Spillman and Robert Liggett. That the co-defendant Billy L. Spillman has caused to be filed a case in the District Court of Douglas County, Kansas, for damages against Raymond A. Whitebread for the sum of $25,000. That as a result of said claims, Raymond A. Whitebread has called upon the plaintiff to defend him in said action, contending that said policy was or should have been renewed on the 5th day of November, 1959, when it expired, and contending that said policy affords him coverage for said collision.'

The petition further denied that there was any liability on the part of the plaintiff to defend the claims or answer in damages to the defendants, and that because of the various claims of the parties an actual controversy existed between them; and then prayed for a declaratory judgment adjudging that the plaintiff was not obligated under its policy to defend or answer in damages to the defendants or any of them.

The defendant, Robert Liggett, neither appeared nor answered the petition. The other three defendants (Whitebread, Bailey and Spillman) filed answers and cross-petitions.

Spillman filed an answer which in effect admitted all of the allegations of the petition except the allegation that the insurance policy had expired on November 5, 1959. The answer admitted that 'this is one of those cases mentioned in G.S.1949, 60-3127 providing for declaratory judgment where an actual controversy exists between the parties.' The prayer of the answer asked for a declaratory judgment adjudging that plaintiff was obligated under its policy to defend and answer in damages to the defendants or any of them.

It is to be noted that neither the petition nor the answer disclosed any of the contentions of the defendant, Spillman, as to what his contentions are as to why the policy did not expire on November 5, 1959.

Spillman then filed a lengthy cross-petition consisting of some 15 paragraphs. It suffices to here state that this pleading, after stating preliminary facts, did allege that:

'This answering Defendant states and alleges that the Plaintiff did issue policy No. 245232 to Raymond A. Whitebread covering a 1958 Mercury automobile, however, this Defendant alleges that the said policy did not expire on November 5, 1959, and further alleges that the policy, a copy of which is attached to the Plaintiff's Petition and marked Exhibit 'A', is not in accordance with the agreement between the said Raymond A. Whitebread and the Plaintiff.

'That through the negligent error of the Alliance Mutual Casualty Company, its agent, servant and employee Robert A. Turney and the Commercial Insurance Service, Policy No. 245232 did state an effective date of November 5, 1958, whereas the date intended by all parties for the inception of the policy No. 245232 was to have been November 26, 1958, and the expiration date on Policy No. 245232 in accordance with the agreement of the parties was to have been November 26, 1959, at 12:01 A.M., however, due to said error the policy did state an incorrect date of termination of November 5, 1959.

'That during all times mentioned herein the said Robert A. Turney was authorized by this Plaintiff to write and otherwise issue in behalf of this Plaintiff all policies of insurance known as 'automobile policies' similar to Policy No. 245232 as attached to Plaintiff's Petition. Further that the said Robert A. Turney did have authority of this Plaintiff to issue the Policy 245232 from his office and upon termination of Policy No. FA 76765 of the Wabash Fire and Casualty Company.

'The defendant Whitebread is not familiar with the practice of insurance and insurance writing and has necessarily relied upon the said Robert A. Turney and the Commercial Insurance Service to write policies of insurance and through a course of dealings lasting over several years with the said Robert A. Turney, the Defendant Raymond A. Whitebread has been caused to and did rely upon the actions and representations of the said Robert A. Turney.

'That it was the intention of the parties thereto, including this Plaintiff, that Defendant Whitebread pay for only one policy covering said automobile during the period of November 5, 1958, to November 26, 1958, whereas by reason of the error and negligence of Robert A. Turney, referred to, he had and paid for two such policies during the said period.

'That the Defendant Whitebread, in accordance with the conditions of the Policy No. 245232 did on the day following the accident of November 18, 1959, notify the said Robert A. Turney and the Commercial Insurance Service of the accident in question, inasmuch as he had cause to and did believe that he was covered by the said policy on November 18, 1959.'

The cross-petition further alleged that the defendant Spillman had demanded of the plaintiff that it pay all expenses incurred within one year from the date of the accident for necessary medical expenses as provided for in the policy and that plaintiff had refused such demands. And such pleading concluded:

'WHEREFORE this answering Defendant asks that this Court reform Policy No. 245232, a copy of which is attached to Plaintiff's Petition to correct the mistake in the said policy of insurance by changing the policy period of November 5, 1958, to November 5, 1959, to the policy period of November 26, 1958, to November 26, 1959, and

'FURTHER Defendant prays the Court for a declaratory judgment adjudging that the Plaintiff is obligated in accordance with the terms of said policy and that this Defendant be allowed a reasonable sum as attorneys fees together with his costs.'

The Plaintiff's reply to Spillman's answer was a general denial. Its answer to his cross-petition follows:

'* * * for its answer to the cross petition of the defendant Spillman, this plaintiff denies each and every allegation contained therein.

'Answering further this plaintiff alleges that the defendant Spillman has failed to make any demands upon the plaintiff and has not complied with any policy, if said policy were in full force and effect, and defendant Billy Spillman is not entitled to recover any attorney fees.

'WHEREFORE this plaintiff prays that defendant Spillman take nothing by his cross petition, and that plaintiff have judgment as prayed in his petition.'

It is to be noted that in no place in the pleading is there any agreement as to the issues and controversy. The plaintiff contends that the policy in question had expired by its terms before the accident occurred. The defendant Spillman's cross-petition was in effect an action to reform an instrument, the insurance policy. It was met by a general denial.

The defendant Clayton Bailey filed an answer and cross-petition. It alleged facts quite similar to those set out in the answer and cross-petition of Spillman except for additional allegations in the cross-petition, which we note:

'* * * The said Robert A. Turney has advised this answering Defendant that he charged the Defendant Raymond A. Whitebread a double premium for insurance coverage from November 5, to November 26, 1958, in that the said Robert A Turney charged the Defendant ...