Arditi v. Massachusetts Bonding & Ins. Co.

• Decision Date: 14 July 1958
• Docket Number: No. 1,No. 46347,46347,1
• Citation: 315 S.W.2d 736
• Parties: Lucien ARDITI and Lillian Coleman, Plaintiffs (Appellants-Respondents), v. MASSACHUSETTS BONDING & INSURANCE COMPANY, a Corporation, The Travelers Insurance Company, a Corporation, and Brooks Erection Company, a Corporation, Defendants (Appellants-Respondents)
• Court: Missouri Supreme Court

Page 736

315 S.W.2d 736

Lucien ARDITI and Lillian Coleman, Plaintiffs (Appellants-Respondents), v. MASSACHUSETTS BONDING & INSURANCE COMPANY, a Corporation The Travelers Insurance Company, a Corporation and Brooks Erection Company, a Corporation, Defendants (Appellants-Respondents).

No. 46347.

Supreme Court of Missouri, Division No. 1.

July 14, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 8, 1958.

James W. Jeans, Hullverson, Richardson, Hullverson & Jeans, St. Louis, for plaintiff-appellant Lucien Arditi.

John T. Murphy, Jr., and Morris B. Kessler, St. Louis, for plaintiff-appellant Lillian Coleman.

Herbert E. Barnard, Richard Moll, James K. Moran, Walther, Barnard, Cloyd & Timm, St. Louis, for Massachusetts Bonding & Ins. Co.

Hocker, Goodwin & MacGreevy and John M. Goodwin, St. Louis (Harold B. Bamburg, St. Louis, of counsel), for The Travelers Ins. Co., respondent-appellant.

J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent Brooks Erection Co.

HYDE, Judge.

Action in equity in nature of garnishment, under Section 379.200 RSMo 1949, V.A.M.S. Plaintiffs each sought payment of a judgment for $10,000.00 against defendant Brooks Erection Company (hereinafter called 'Brooks'), in their respective actions for personal injuries, and sued to collect from the two defendant insurance companies (hereinafter called 'Massachusetts' and 'Travelers'). All parties have appealed from the judgment entered, which prorated the amount to be paid by the insurance companies, both as to what was found due to plaintiffs on their judgments and what was found due to Brooks on its crossclaims of $7,974.05 against the two insurance companies; and which also found against Travelers on its crossclaims against Brooks and Massachusetts.

The facts upon which plaintiffs obtained their judgments for personal injuries may be found in our opinion in Arditi v. Brooks Erection Co., Mo.Sup., 266 S.W.2d 556. It is sufficient to say here that plaintiffs were passengers on a bus which was struck by a Shell Oil Company tractor-trailer tank truck, driven by an employee of Brooks. The tank on this truck had been repaired by Brooks and it was being delivered by its employee at the request of Shell. The Massachusetts policy, issued to Brooks, covered the use of non-owned automobiles of the kind involved, insuring 'the use in such business, by any employee of the named insured, of any non-owned automobile of the commercial or truck type if such use of such automobile is occasional and infrequent.' The principal contention of Massachusetts is that Brooks was not covered, in this case, because the use of the Shell tractor-trailer tank involved was not 'occasional and infrequent;' and it says this issue is res judicata because of the findings required by the verdict directing instruction upon which the jury in plaintiffs' personal injury cases found against Brooks.

Considering the res judicata claim first, the part of the instruction relied on was: 'that on the occasion mentioned in evidence and for a long time prior thereto the defendant Shell had an arrangement with the defendant Brooks whereby the Shell trucks worked upon by the defendant Brooks would be returned to the defendant Shell by an employee of the defendant Brooks, and that such was the custom and practice not only on the occasion mentioned in evidence, but for a long time prior thereto, and that at the time and place of the collision mentioned in evidence the truck was being operated by an employee of defendant Brooks.' However, while this instruction required a finding that the arrangement to return trucks had existed for a long time and had been followed as a custom and practice, it required no finding as to the frequency of the return of trucks, how many trucks had ever been returned by Brooks' employees or how many were returned in any year when the Massachusetts policy was in effect. Nor was there any finding required that the particular truck involved had ever been driven before by any Brooks' employee. Defendant cites 50 C.J.S. Judgments Sec. 712, pp. 168-181; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330; Soukop v. Employers' Liability Assur. Corp., 341 Mo. 614, 108 S.W.2d 86; Tomnitz v. Employers' Liability Assur. Corp., 343 Mo. 321, 121 S.W.2d 745; but these authorities are not in point in the situation herein involved. Massachusetts did not plead res judicata (see Section 509.090 RSMo 1949, V.A.M.S.; Berghorn v. Reorganized School District No. 8, 364 Mo. 121, 260 S.W.2d 573; Chance v. Franke, 348 Mo. 402, 153 S.W.2d 378, 380) and we do not find it is established by plaintiffs' pleadings or evidence, as Massachusetts claims. We, therefore, hold that the issue of 'occasional and infrequent' use was not res judicata.

As to this issue, Brooks' evidence showed that Brooks repaired 50 or 60 Shell tanks each year and that only about 10% of them were delivered by Brooks' employees; the shop foreman said about 1/12. Massachusetts had evidence that from 1/2 to 2/3 were delivered by Brooks. In any event, it appears that sometimes Shell sent their men for the tank trucks; that at other times Brooks delivered them; and that this was usually arranged as to each tank truck, either when it was sent for repairs or after the repairs were completed. However, there is no evidence that the particular tank unit involved had ever been previously repaired by Brooks or driven by any of its employees so that it appears that its use was 'occasional and infrequent.' The wording of the policy (hereinabove quoted) clearly seems to apply to each particular automobile used and, in the absence of any other restriction, this would seem to be its reasonable construction. Anyhow, we must hold there was sufficient substantial evidence to warrant the finding of the Court that the use was occasional and infrequent. In its reply brief, for the first time, Massachusetts says that delivering a customer's truck is not use in its business. It cites no authority for such construction and this seems inconsistent with its claim that it was usual and customary for Brooks in its business to make such deliveries. Furthermore, there is no evidence that Brooks ever drove non-owned cars for any other purpose. Considering the circumstances shown in the evidence under which this policy was written (Massachusetts knowing the nature of Brooks' business and its reasons for obtaining this insurance), and in the absence of any definition of 'use in such business' in the policy, we conclude this contention is without merit. We, therefore, hold the trial court properly ruled that this policy does insure the operation involved and that Massachusetts is liable to pay plaintiffs' judgments against Brooks.

Travelers insured Shell but its policy contained a so-called 'omnibus clause' stating: 'Definition of Insured. The unqualified word 'insured' includes * * * any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.' However, the policy contained the following exception, upon which Travelers relies, namely: 'The insurance with respect to any person or organization other than the named insured does not apply * * * (b) to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof.' Travelers' claim is that Brooks was operating an automobile repair shop and for that reason was not covered by the Travelers' policy. It points out that Brooks' corporate articles gave it authority to operate an automobile repair shop. However, it is what it actually did rather than what it could have done that is decisive.

The evidence was that Brooks' business 'was welding and erection of tanks and hoppers, smoke stacks, steaming of tanks, repairing leaks in tanks * * * boiler work, re-tubing boilers.' Most of this work was done off the premises of Brooks in St. Louis; the work done on the premises mainly being steaming and welding of tanks. Steaming was necessary to get gasoline and gas fumes out before a tank could be welded. The only work done for Shell was to steam, weld and test tanks for leaks. Brooks' employees 'were all riggers and welders and boilermakers,' who belonged to the Boilermakers Union, none of them were automobile mechanics. Brooks had one licensed chauffer, a construction driver, who belonged to the Boilermakers Helpers and Teamsters Union. Brooks did no painting, body work or repair work on motor vehicles, either its own or those of others; but sent its own trucks to other companies for repairs. It had a fenced in lot, adjoining its building where it kept its own trucks and those of others left over night. In its shop in the building, it had welding equipment, erection equipment and a monorail with a chain hoist. It had done tank repair work for two or three oil companies other than Shell and had also repaired leaks in automobile gasoline tanks, all boilermakers' work. We do not think this evidence shows that Brooks was operating an automobile repair shop, and certainly it was sufficient substantial evidence to warrant a finding by the trial court that it was not doing so. Travelers argues that Brooks' business should be classed as an automobile repair shop because it had an element in common with it. It says of the excluded occupations: 'All of them have one element in common: when the insured vehicle is entrusted to any one of them, control over its operation passes from the named insured to others over whom the named...