Burke v. Cerra

• Decision Date: 04 December 1928
• Docket Number: No. 20460.,20460.
• Citation: 11 S.W.2d 59
• Parties: BURKE v. CERRA (AMERICAN MUT. CASUALTY CO., Garnishee).
• Court: Missouri Court of Appeals

11 S.W.2d 59

BURKE v. CERRA (AMERICAN MUT. CASUALTY CO., Garnishee).

No. 20460.

St. Louis Court of Appeals. Missouri.

December 4, 1928.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action by Oliver Burke against Sam Cerra, defendant, and the American Mutual Casualty Company, garnishee. From the judgment, garnishee appeals. Affirmed.

William O. McKenna, of Clayton, for appellant.

Kelley, Starke & Hassett, of St. Louis, for respondent.

BECKER, J.

Plaintiff, having obtained judgment for $1,000 against the defendant Cerra, and a nulla bona return having been made to the writ of execution thereon, garnisheed the American Mutual Casualty Company. The trial before the court, a jury having been waived, resulted in a finding for plaintiff and an order against the garnishee to pay into court the sum of $1,000 together with interest and costs. The garnishee failing to comply with the order of court, final judgment was entered, and the garnishee appeals.

Admittedly the American Farmers' Mutual Automobile Indemnity Company, a corporation organized under the insurance laws of the state of Missouri, for a valuable consideration, paid to it by the defendant below, Sam Cerra, executed and delivered to him its policy of insurance under the terms and conditions of which said company agreed to insure the defendant, Sam Cerra, against the perils, losses, and risks resulting from the ownership, operation, or maintenance of the automobile truck mentioned therein, in the sum of $5,000, by reason of claims upon the said Sam Cerra on account of bodily injuries sustained by any person upon the public highway occurring during the term of said policy which began at noon on the 3d day of March, 1924, and ended at noon on the 3d day of March, 1925. In the month of April, 1925, the name of said insurance company was changed to American Mutual Casualty Company.

It is further admitted that the plaintiff obtained a judgment against the said Sam Cerra in the sum of $1,000 in an action for damages for personal injuries alleged to have been sustained by plaintiff on June 2, 1924, resulting from being struck by a truck owned and operated by the said defendant, Sam Cerra, near Broadway and Clinton street in the city of St. Louis; that execution was had on said judgment and a nulla bona return had thereon.

It was the contention of the garnishee below that the policy of insurance which it had issued to defendant, Cerra, had on May 20, 1924, been surrendered by him for cancellation, and the unearned premium paid back to him by check, which check was duly cashed at the bank upon which it was drawn, and that therefore the policy was not in effect on June 2, 1924, the date upon which plaintiff met with his injuries. In support of this contention the garnishee introduced in evidence a writing purporting to release the garnishee from all claims under the policy in question, together with a check for $30.40 payable to the order of Sam Cerra; each of these items bearing date of May 20, 1924, the release having appended thereto the name "Sam Cerra," and the check bearing a like indorsement, and a notation that it had been paid May 21, 1924, by the bank upon which it had been drawn.

In rebuttal plaintiff adduced Sam Cerra as a witness who testified that he had paid the garnishee a premium of $38 for the policy in question;...