Central Sur. & Ins. Corp. v. New Amsterdam Cas. Co.

• Decision Date: 11 July 1949
• Docket Number: 41386,41387
• Citation: 222 S.W.2d 76,359 Mo. 430
• Parties: Central Surety and Insurance Corporation, Assignee of Clara Ross, Respondent, v. New Amsterdam Casualty Company and Employers Mutual Liability Insurance Company of Wisconsin, Appellants
• Court: Missouri Supreme Court

222 S.W.2d 76

359 Mo. 430

Central Surety and Insurance Corporation, Assignee of Clara Ross, Respondent, v. New Amsterdam Casualty Company and Employers Mutual Liability Insurance Company of Wisconsin, Appellants

Nos. 41386, 41387

Supreme Court of Missouri

July 11, 1949

Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.

Reversed.

SYLLABUS

After respondent insurance company had defended a suit for damages arising out of the collision of plaintiff's automobile and a road grader towed by a truck operated by the insured defendant, and had paid the judgment and obtained an assignment from plaintiff, contribution was sought through garnishment in aid of execution against appellant insurance companies who had issued accident liability policies to the same insured. But the policies issued by appellants contained automobile exclusion clauses and the judgment against the insured defendant should not be construed as covering such policies. The judgment for contribution is reversed.

James R. Sullivan and Arthur R. Wolfe for appellant Employers Mutual Liability Insurance Co. of Wisconsin.

(1) In this contest between three insurance companies in which Central attempts to recoup its loss on the theory that the policies of Employers and New Amsterdam overlapped its policy and covered the same loss, Central by claiming as an assignee of the judgment against its insured has not changed any existing rights between the three insurers; and the trial court erred in its finding and judgment to the contrary. Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181; Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441. (2) The judgment entry finding that the accident was the result of negligent operation of the "road grader or scraper" is not res judicata as to Employers' liability; and the court erred in its finding and judgment to the contrary. Perkins v. Becker, 236 Mo.App. 786, 157 S.W.2d 550; Daniel v. State Farm Ins. Co., 233 Mo.App. 1081, 130 S.W.2d 244; Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181. (3) Under the plain language and meaning of the Employers' policy, viewed in the light of the situation of the parties, that policy did not cover an accident to a road grader being towed on the highway by an automobile, and the court erred in its finding and judgment to the contrary. Blake v. Salmonson, 188 Misc. 97, 67 N.Y.S. (2d) 607; Employers Cas. Co. v. Underwood, 142 Okla. 208, 286 P. 7; Wolcott v. Renault Selling Branch, 175 A.D. 858, 162 N.Y. 496; Mason-Kier Co. v. Case, 97 P. 165; Davis v. Natl. Casualty Co., 142 Tex. 29, 175 S.W.2d 957; Commercial Standard Ins. Co. v. McKinney, 114 S.W.2d 338; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99.

E. R. Morrison, Randolph P. Rogers, Jr., and Morrison, Nugent, Berger, Hecker & Buck for appellant New Amsterdam Casualty Co.

(1) The court erred in not holding that the New Amsterdam policy in clear and unambiguous terms excludes coverage with respect to the Ross accident. Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; State ex rel. Prudential Ins. Co. v. Shane, 344 Mo. 623, 127 S.W.2d 675; Swanson v. Central Surety & Ins. Corp., 343 Mo. 350, 121 S.W.2d 783; Packard Mfg. Co. v. Indiana Lumbermen's Mut. Ins. Co., 356 Mo. 687, 203 S.W.2d 415; Sec. 1578, R.S. 1939. Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835. (2) The undisputed evidence shows that the accident was caused by the use of the motor truck and the court erred in holding that the accident was within the coverage of the New Amsterdam policy. Quality Dairy Co. v. Ft. Dearborn Cas. Underwriters, 16 S.W.2d 613; Harvey Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181, 154 A.L.R. 1088; Merchants Co. v. Hartford Acc. & Indemnity Co., 187 Miss. 301, 188 So. 571; Davis v. Natl. Casualty Co., 142 Tex. 29, 175 S.W.2d 957; Commercial Standard Ins. Co. v. McKinney, 114 S.W.2d 338; Sec. 8405, R.S. 1939. (3) The judgment in the Ross case is not adverse to New Amsterdam and in any event the finding is not specific nor necessary and is not controlling as between New Amsterdam and Central and the court erred in holding to the contrary. Russell v. Place, 94 U.S. 606; Perry v. First Natl. Bank, 91 S.W.2d 78; Schmidt v. Utilities Ins. Co., supra; Merchants Co. v. Hartford Acc. & Indemnity Co., supra; City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 22 S.W. 794; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330; Scheer v. Trust Co. of St. Louis, 330 Mo. 149, 49 S.W.2d 135; Missouri District Telegraph Co. v. Southwestern Bell Tel. Co., 79 S.W.2d 257; Daniel v. State Farm Mut. Ins. Co., 233 Mo.App. 1081, 130 S.W.2d 244; Perkins v. Becker, 236 Mo.App. 786, 157 S.W.2d 550; Soukop v. Employers Liab. Assur. Corp., 341 Mo. 614, 108 S.W.2d 86; Marshall v. Auto Supply, 354 Mo. 455, 189 S.W.2d 529.

Douglas Stripp and Watson, Ess, Whittaker, Marshall & Enggas for respondent.

(1) The insinuations made and the theory propounded in Point (1) of Employers' brief are unwarranted, fallacious, and outside the record. Soukop v. Employers Liab. Assur. Corp., 341 Mo. 614, 108 S.W.2d 86. (2) The broad insuring clause in each garnishee's policy covers the liability imposed by the Ross judgment and such coverage is not affected by the exclusion clause solely relied upon in either policy. The coverage of New Amsterdam's policy. Bituminous Cas. Corp. v. Walsh & Wells 170 S.W.2d 117; State ex rel. Mills Lbr. Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; Sec. 8386 (s), R.S. 1939; Soukop v. Employers Liab. Assur. Corp., 341 Mo. 44, 108 S.W.2d 86; Quality Dairy Co. v. Ft. Dearborn Cas. Underwriters, 16 S.W.2d 613; Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181; Commercial Standard Ins. Co. v. McKinney, 114 S.W.2d 338; Standard Acc. Ins. Co. v. Swift, 31 A. 66; Traders & General Ins. Co. v. Hicks Rubber Co., 140 Tex. 586, 169 S.W.2d 142. (3) The coverage of Employers' policy. Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628; 43 Words and Phrases, p. 313. (4) If there be any merit whatever in the garnishees' arguments respecting the interpretation of their respective policies, at best it does no more than establish ambiguity which must be construed against them. Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; McDermott v. Donegan, 44 Mo. 85; People's Savings Bank v. Hoppe, 132 Mo.App. 449, 111 S.W. 1190; Argeropoulis v. K.C. Rys. Co., 201 Mo.App. 287, 212 S.W. 369; State ex rel. Mills Lbr. Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441; Soukop v. Employers Liab. Assur. Corp., 341 Mo. 614, 108 S.W.2d 86; Bituminous Cas. Corp. v. Walsh & Wells, 170 S.W.2d 117; Evans v. Great Northern Life Ins. Co., 237 Mo.App. 317, 167 S.W.2d 118; Hoover v. Natl. Cas. Co., 236 Mo.App. 1093, 162 S.W.2d 363. (5) Conclusiveness of the judgment in Ross v. Bowen. Soukop case, supra; Dolph v. Md. Cas. Co., 303 Mo. 534, 261 S.W. 330; Marshall's U.S. Auto Supply v. Md. Cas. Co., 354 Mo. 455, 189 S.W.2d 529; Sec. 8386(s), R.S. 1939; Perkins v. Becker, 236 Mo.App. 786, 157 S.W.2d 550; Daniel v. State Farm Ins. Co., 223 Mo.App. 1081, 130 S.W.2d 244; Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181; City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 22 S.W. 794; Scheer v. Trust Co., 330 Mo. 149, 49 S.W.2d 135; Mo. District Tel. Co. v. S.W. Bell Tel. Co., 79 S.W.2d 257.

OPINION

Tipton, J.

We ordered this case transferred from the Kansas City Court of Appeals. That court affirmed a judgment of the Circuit Court of Jackson County which sustained respondent's garnishment in aid of an execution to recover for proportionate liability of the appellants, two other insurers. The opinion of the Court of Appeals is reported in 216 S.W. 2d 527. The cases against the New Amsterdam Casualty Company and Employers Mutual Liability Insurance Company of Wisconsin were consolidated in the Kansas City Court of Appeals and also in this court.

Clara Ross brought a suit against Cecilia Bowen and Matthew J. Bowen, doing business as the Bowen Construction Company, for personal injuries and damages to property. They notified the respondent and the two appellants herein and forwarded to each the petition and summons in the cause with the request that they defend the action under the respective policies issued by them. The respondent did defend the action. The two appellants, hereinafter referred to as the Employers and the New Amsterdam, declined to do so, claiming no liability under the policies.

At the trial of the damage suit a jury was waived and the case was tried to the court. The stipulation in the garnishment proceedings shows that at the time and place of the accident the agents and servants of Bowen Construction Company were operating a tractor or truck on 85th Street, a public highway in Kansas City, Missouri, on the way to a construction job at President Gardens; that the place of the accident was not on the premises owned or controlled by Bowen Construction Company; that attached to the tractor was a semi-trailer on two wheels; that attached to the rear end of the semi-trailer was a road grader which was chained to the rear end of the semi-trailer by a tongue six or seven feet long, making the entire length of the tractor, semi-trailer and grader 55 feet; that each unit had a different width and the widest was the grader; that only the tractor or truck was self-propelled and it was towing the other two units; and that the grader had no motor and could only be moved by being towed. The tractor or truck had head lights and cluster lights burning but there were no lights on the grader. Clara Ross's automobile collided with the left rear wheel of the grader. Judgment was entered for Clara Ross for $ 4,000 for personal injuries and...