Breeden v. Frankford Marine, Accident & Plate Glass Insurance Company

• Decision Date: 22 May 1909
• Parties: J. C. BREEDEN, Appellant, v. FRANKFORD MARINE, ACCIDENT & PLATE GLASS INSURANCE COMPANY
• Court: Missouri Supreme Court

119 S.W. 576

220 Mo. 327

J. C. BREEDEN, Appellant, v. FRANKFORD MARINE, ACCIDENT & PLATE GLASS INSURANCE COMPANY

Supreme Court of Missouri

May 22, 1909

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.

Affirmed.

H. L Shannon for appellant.

(1) Maintenance is unlawful under the law of Missouri. Duke v. Harper, 66 Mo. 51; Breeden v. Ins. Co., 110 Mo.App. 312; Phelps v. Manecke, 119 Mo.App. 139. (2) A civil action for damages resulting from maintenance will lie at common law. Breeden v. Ins. Co., 110 Mo.App 312; 5 Am. and Eng. Ency. Law (2 Ed.), 821; Harris v Brisco, 17 Q. B. Div. 511; Wallis v. Portland, 3 Ves. Jr. 502; Pechell v. Watson, 8 M. & W. 691; Bradlaugh v. Newdgate, 11 Q. B. Div. 1; Goodyear Dental Vulcanite Co. v. White, Fed. Cases, 5602; Fletcher v. Ellis, Fed. Cases, No. 4, 863a; Lynn v. Moss, 62 S.W. 712. (3) Where an outside party wholly without interest in the matter out of which a legal controversy arises employs lawyers and gets up evidence at his own expense in behalf of one of the parties, he is guilty of maintenance. Phelps v. Manecke, 119 Mo.App. 144. (4) A contract to maintain another is void. Phelps v Manecke, 119 Mo.App. 139; Burt v. Place, 6 Cow. 431; Underwood v. Riley, 19 Wis. 412. (5) Where the interest of a stranger to a lawsuit arises out of a contract which also obligates such stranger to prosecute or defend the suit, the interest is not such as will justify maintenance. Campbell v. Jones, 4 Wend. 310; Railroad v. Elect. Co., 74 Ill.App. 465; Burt v. Place, 6 Cow. 431. (6) It is not essential that the services should be purely voluntary in order that the one who assists in prosecuting or defending a suit may be guilty of maintenance. One may be guilty of maintenance although he has been, or is to be, compensated for his services. Underwood v. Riley, 19 Wis. 434; Getchel v. Welday, 4 Ohio Dec. 65; Lucas v. Allen, 80 Ky. 681; Phelps v. Manecke, 119 Mo.App. 139. (7) It is not essential to the offense of champerty that there be a suit pending at the time the champertous agreement is made. Rust v. Lance, 14 Am. Dec. 172. (8) A contract in the alternative, one part being non-enforcible on account of being illegal, cannot be enforced as to the other part. Andrews v. Broughton, 78 Mo.App. 188. (9) While the chief sources for determining the public policy of a nationa are its constitution, laws and judicial decisions, the court should not hesitate to declare a contract illegal, merely because no statute or precedent prohibiting it can be found. 15 Am. and Eng. Ency. Law (2 Ed.), 933. (10) On the ground of public policy a contract to exempt the master from the consequences of his negligence is void. Blanton v. Dold, 109 Mo. 75; Settle v. Railroad, 127 Mo. 343; Bair v. Heibel, 103 Mo.App. 635. (11) Under an employer's liability policy insuring against loss or damage by reason of liability, there is no liability on the policy until a judgment has been recovered against and paid by the assured. 4 Current Law, 190; Finley v. U. S. Casualty Co., 83 S.W. 2. (12) The settlement of one cause of action will not operate as a release of a separate and distinct cause of action between the same parties, even though both cases grow out of the same transaction. "On a question of settlement there are no artificial mysteries or technical pitfalls. The question to determine is one of mere facts, whether there has been a settlement of the thing in litigation." Gens & Tiede v. Hargadine & Co., 56 Mo.App. 256. (13) Dicta, expressions of opinions by the appellate court on matters, the disposition of which was not required, create no estoppel. 26 Am. and Eng. Ency. Law (2 Ed.), 192, 193. (14) The release purports to release only the judgment. The record is silent concerning any other liability in favor of the plaintiff and against either the insurance company or the mining company. Could the payment of $ 1,000 in full satisfaction of the judgment be an accord and satisfaction of plaintiff's demand against defendant for maintenance? An accord and satisfaction is a proposition made and accepted and executed upon an agreement that it shall satisfy a demand. It does not operate by way of estoppel, but by agreement. 1 Am. and Eng. Ency. Law (2 Ed.), 408. There was no agreement that plaintiff's cause of action against defendant for maintenance should be satisfied. Therefore, there was no accord and satisfaction. Bigbee v. Coombs, 64 Mo. 529; Gens & Tiede v. Hagardine & Co., 56 Mo.App. 254. A release may take place by implication, by construction or by estoppel. 24 Am. and Eng. Ency. Law (2 Ed.), 285. The case at bar does not seem to be analogous to any of the cases of release by implication. The mining company and the insurance company were not joint debtors nor joint trespassers. It could hardly be said that the mining company was guilty of maintenance in defending its own suit. In fact, it did not defend its own suit. But even if it could be said that it participated in the wrong perpetrated by the insurance company against the plaintiff, still it would not follow that it or the insurance company had been discharged from liability for damages on account of that wrong. Even a full payment of plaintiff's judgment would not have satisfied plaintiff's claim for damages for maintenance against the insurance company, nor against the mining company, if such claim could be made against the mining company. He would still be entitled to compensation for such expense in prosecuting his suit against the mining company as was occasioned by the unlawful interference of the insurance company in the defense of that suit, and to compensation for delay in the payment of his damages. It would follow that there was no release by construction. Bigbee v. Coombs, 64 Mo. 529; 24 Am. and Eng. Ency. Law (2 Ed.), 285. Will the principles of estoppel applied to the facts of this case operate to discharge plaintiff's demand against the insurance company? If a judgment in favor of plaintiff in this case would operate to set aside and cancel "the agreement that the said mining company would release this defendant from any and all further liability under the said policy," then plaintiff might be estopped from prosecuting this suit. But since defendant procured its release from the mining company for and on account of the policy of insurance in consideration of the payment of $ 1,000, and said release is the only consideration suggested by the record as inducing the defendant to pay said $ 1,000, defendant got all it contracted for in consideration of its $ 1,000, and it is not in a position to claim anything more. Perhaps the next time it would require plaintiff to further agree to release it from damages for maintenance, but it did not do it this time.

Chas. F. Krone, amicus curiae.

Did or did not the payment of the one thousand dollars operate as a discharge of respondent from any cause of action for maintenance which appellant might otherwise still have a right to enforce? This money was paid by the indemnity company after the controversy respecting the premiums and its continued liability had arisen and was understood between it and the mining company to be in full release of further liability under the policy. It was paid directly to appellant, but on account of the mining company, and after the indemnity company had, through its chosen attorney conducted the entire defense of the personal injury suit. All of this the appellant knew. There was no mention of any complaint on the part of the appellant on the score of maintenance, and there is nothing to show that any possible suit on that ground was contemplated by any of the parties to the transaction. Had such a possibility been suggested it is most probable that the indemnity company would have made some effort to secure a specific release for such cause or refused payment unless such a release were given. Whatever negotiations may have been had, the whole transaction was finally embodied in the following entry of record in the suit of appellant against the mining company: "In consideration of the insolvency of the Big Circle Mining Company and one thousand dollars ($ 1,000) to plaintiff in hand paid, the judgment on this page is hereby released and full satisfaction thereof acknowledged, and the sheriff is hereby authorized to release to the defendant any and all property levied upon under and by virtue of execution issued on said judgment. Dated this May 20, 1904. Witness my hand and seal. J. C. Breeden." Here is an express statement of what the money was paid to discharge, a statement made by both the appellant and respondent, for it is made physically by the former at the procurement of the latter. As a mere writing, therefore, it would be taken to reduce previous negotiations to a certainty which could not be varied by oral testimony. But this is not only a writing, but a solemn entry of record in satisfaction of a judgment of a court of record. It is conclusive of what it purports and exclusive of any and all variations by evidence in pais. But there is nothing in the oral evidence even to suggest that appellant, in addition to his release of this judgment for personal injuries, was to release a cause of action for maintenance. No such matter was shown to be in the minds of the parties. Why then should a release for maintenance be raised by implication upon satisfaction of injury for negligence, even if the inviolable writing of record be ignored? Why raise an estoppel, when its subject-matter was not thought of and when the money was certainly not paid even on the expectation of a release for maintenance? The appellant cared not whence the money came which he accepted nor what liabilities or controversies it settled between the indemnity and mining companies. Appellant had no rights under the...