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

Decision Date06 December 1948
Docket NumberNo. 21081.,No. 21080.,21080.,21081.
Citation216 S.W.2d 527
CourtMissouri Court of Appeals
PartiesCENTRAL SURETY & INS. CORPORATION v. NEW AMSTERDAM CASUALTY CO. et al.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Garnishment proceedings by the Central Surety and Insurance Corporation, assignee of Clara Ross, against the New Amsterdam Casualty Company and another. From a judgment against both garnishees, the garnishees appeal.

Affirmed.

Randolph P. Rogers, Jr., Henry W. Buck and Morrison, Nugent, Berger, Hecker & Buck, all of Kansas City, for appellant, New Amsterdam Casualty Co.

James R. Sullivan and Arthur R. Wolfe, both of Kansas City (Charles V. Garnett, of Kansas City, of counsel), for appellant Employers Mut. Liability Ins. Co. of Wisconsin.

Carl E. Enggas, Douglas Stripp and Watson, Ess, Barnett, Whittaker & Marshall, all of Kansas City, for respondent.

DEW, Judge.

Respondent, an insurer, claiming as an assignee of a judgment against its insured, seeks by garnishment in aid of execution to recover for proportionate liability of two other insurers, the appellants. From a judgment against the garnishees, both have appealed and both appeals are herein combined.

Clara Ross, hereinafter called the "plaintiff", brought suit in the Circuit Court of Jackson County in two counts against Cecelia Bowen and Matthew J. Bowen, doing business as the Bowen Construction Company, hereinafter called the "defendants", wherein, in her first count, she sought damages for personal injuries, and in her second count, for damages to property. The substance of her petition was that the defendants were engaged in the construction, grading and paving business in Kansas City, Missouri, and elsewhere; that defendants owned tractors, trailers and graders, and other construction equipment; that on February 23, 1945, at 8:00 p. m., defendants, by their agents, servants and employees, acting in due course of their employment and for and in behalf of defendants, were driving a White tractor and Northwestern trailer and towing an Austin western road grader upon and along 85th street, a highway in said county, at a point near Lydia Avenue, in a westerly direction, and so negligently and carelessly controlled and operated said tractor, trailer and grader as to cause or permit the same to come into violent contact with an automobile which plaintiff was at the time driving in an easterly direction on said highway, thereby injuring plaintiff and damaging her said automobile.

Defendants notified the respondent of the said suit and also the two appellants herein, and forwarded to each the petition and summons in the cause, with the request that they defend the said cause under the respective policies issued by them. The respondent, by and through its counsel, defended the said action. The two appellants, hereinafter referred to as the "Employers" and the "New Amsterdam", respectively, declined to do so, claiming nonliability under their policies. At the trial of the damage suit a jury was waived and the same was tried to the court. The plaintiff's evidence in that cause tended to prove, and it was so stipulated in the garnishment proceedings that, among other things, at the time and place in question, the agents and servants of the defendants were operating a tractor or truck on 85th street, a public highway, on the way to a construction job a few blocks distant; that the place of the accident was not on premises owned or controlled by the defendants; that attached to the tractor was a semi-trailer on two wheels and with attachment equipment resting on and fastened to a "fifth wheel" over the rear axle of the tractor; and attached to the rear end of the semi-trailer was a road grader (as shown by photograph in evidence), of a light weight type, which had four wheels, supporting steel framework carrying beneath it a scraping equipment; that the grader was chained to the rear end of the semi-trailer by a tongue six or seven feet long; that this entire assembly of tractor, semi-trailer and grader was 55 feet in length, and each unit was of different width, the grader being the widest, 15 feet; that only the tractor or truck was self-propelled, and was towing the other two units; the grader carried no fuel, had no motor and could not be moved except by being towed. The tractor or truck had headlights and cluster lights burning, but there were no lights on the grader. Plaintiff's automobile collided with the left rear wheel of the grader. Judgment was rendered in plaintiff's behalf for $4000 on the first count for personal injuries, and for $400 on the second count for damages to her car, a total of $4400.

The court, in its judgment in the damage suit, found that "the plaintiff, on February 23, 1945, accidently sustained personal injuries (Count 1) and property damage (count 2) as a direct result of negligence of the defendants in the operation of a road grader or scraper which collided with a motor car which plaintiff was driving * * *". Thereafter motions for new trial were filed and overruled. On May 1 1946, a general execution was issued in behalf of Clara Ross, and on May 7, 1946, summonses in garnishment were issued to each of the appellants. On May 13, 1946, respondent herein filed, as assignee of the judgment aforesaid, interrogatories to each of said garnishees. In the garnishment proceedings there was introduced in evidence by the respondent an instrument entitled: "Sale and Assignment of Judgment", the substance of which is that on April 18, 1946, the said judgment-plaintiff Clara Ross, for the consideration of $4400 paid to her by Central Surety and Insurance Corporation, did sell, assign and transfer said judgment unto that corporation, its successors and assigns. This was signed and acknowledged by Clara Ross.

It is admitted that at the time of the collision referred to the defendants held insurance policies issued by each of the appellants and respondent, respectively. Each of the policies contains an "other insurance" clause, in effect, limiting the liability of the insurer to a proportion of the loss not to exceed that which the applicable limit of its liability bears to the applicable limit of all. By the answers of the garnishees (appellants) and by their respective motions to quash the garnishments it was contended by both that their policies did not cover the liability in question at all and, further, that the respondent was primarily liable for the judgment under its policy and had in fact, by its voluntary payment of the full amount of the judgment to the plaintiff, satisfied and extinguished the judgment, and had no right of contribution or other right of recovery for any part thereof as against the appellants. On the contrary, the respondent maintained that all three policies covered the damages referred to, and that since each policy contained a clause prorating its liability, that each of the appellants is liable for its respective proportion of the judgment and costs, and that the respondent is entitled to collect the appellants' contractual proportions as assignee under Section 1300, R.S. Mo.1939 et seq., Mo.R.S.A. Those sections authorize assignments of judgments of the circuit court for recovery of money, and fix the rights of the assignee thereunder.

The respondent filed its reply to the answers of the garnishees; the motions to quash the garnishments were overruled and the proceedings were tried before the court without a jury. The court found the issues in favor of the respondent, as assignee; that all three policies covered the liability, and adjudged that appellant New Amsterdam was indebted under the judgment in the total sum of $1809.14, including its portion of the interest and costs; that Employers was indebted under said judgment in the total sum of $1969.64, including its portion of the interest and costs, and ordered said garnishees to pay the respective amounts to the sheriff. The court also filed its findings and opinion. Motions for verdict and for new trial were overruled and both garnishees appealed and have combined said appeals in this court.

The policy issued by the respondent, entitled a "Combination Automobile Policy", covered liability of the defendants for personal injuries or property damages "caused by accident and arising out of the ownership, maintenance or use of the automobile" and (by endorsement) the semi-trailer. That the accident in question was covered by respondent's policy is admitted by all the parties.

The policy of the Employers entitled "General Liability Insurance Policy", provides coverage of the liability of the insured for bodily injury and property damage sustained by any person or persons "caused by accident and arising out of the hazards hereinafter defined". The hazards, as defined, were specified as follows: "Premises and Operations — The ownership, maintenance or use of the premises, and all operations during the policy period which are necessary or incidental thereto". Exclusion (b) provides: "This policy does not apply under Division 1 of the Definition of Hazards * * * to automobiles while away from premises owned, rented or controlled by the named insured. * * *". The policy defines automobiles as "the word `automobile' shall mean...

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