Cotton v. Iowa Mut. Liability Ins. Co.
| Decision Date | 23 September 1952 |
| Docket Number | No. 2,No. 42759,42759,2 |
| Parties | COTTON v. IOWA MUT. LIABILITY INS. CO. et al |
| Court | Missouri Supreme Court |
Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellant Iowa Mut. Liability Ins. Co.
Vance Julian, Clinton, for appellant Haden R. Frisbie.
David H. Bresler, Kansas City, Frank L. Cohn, Kansas City, Harry A. Hall, Kansas City, for respondent.
BOHLING, Commissioner.
This declaratory judgment action was instituted by Daniel P. Cotton against Iowa Mutual Liability Insurance Company, a corporation (hereinafter referred to as insurer), and Haden R. Frisbie and John A. Harris. Plaintiff's main purpose was to secure a declaration, in the event a certain automobile collision hereinafter described be established to have been the direct result of the negligence of defendant Frisbie, that a policy of liability insurance issued by defendant insurer covered the personal injuries and property damage sustained by plaintiff in said collision. Other issues essential to a ruling here will be developed in the course of the opinion. The declaratory judgment of the trial court was in favor of plaintiff. The trial court dismissed plaintiff's claim against defendant Harris, and plaintiff makes no complaint of this ruling. Defendants Frisbie and insurer prosecute this appeal.
The first issue for determination is whether this court has jurisdiction of the appeal. This depends on one or another of two issues: Whether the amount in dispute is established to exceed $7,500; or whether a constitutional question is presented in an appellate jurisdictional sense.
On September 22, 1946, a collision occurred about seven miles east of Knobnoster, Missouri, between two automobiles, one being operated westwardly by plaintiff and the other eastwardly by defendant Frisbie over U. S. Highway 50. Defendant Frisbie was a Major and member of the Reserve Military Force of the State of Missouri, living at Columbia, Missouri, and had been attending maneuvers in the locality of Knobnoster. At the time he was returning to his home, driving a 'jeep,' the property of the Missouri State Guard. Plaintiff charged in his petition that the collision was caused by defendant Frisbie negligently driving on the wrong side of said highway at said time and place.
Defendant insurer had in effect at said time its policy No. 182192, naming as the insured, 'The Missouri State Guard, John A. Harris, Commanding General and Adjutant General,' which policy insured against liability for personal injuries in the sum of $100,000 and property damages in the sum of $5,000.
In 1943, Laws 1943, pp. 644-647, the General Assembly passed an act for the maintenance of the Reserve Military Force in accordance with the provisions of Chapter 121, R.S.1939, relating to 'Military Forces.' Section 4, Mo.R.S.A.1939, Sec. 15022.4, of said act provided:
'Neither the officers nor the enlisted men of the Reserve Military Force shall be liable for civil action, for the death of, or any injury to, persons or for any damage to property as a result of any action taken by any member or members of the Reserve Military Force while engaged in and pursuant to the performance of lawfully ordered duties as members of the Reserve Military Force.'
Plaintiff's petition herein contained allegations covering the essential facts of the foregoing statement. Plaintiff also alleged that claim had been made that defendant Frisbie was not liable for damages to 'plaintiff's automobile' and 'personal injuries to plaintiff' resulting from the aforesaid collision by reason of said Sec. 4, Laws 1943, p. 646; and that claim had been made that defendant insurer, under the terms of the policy aforesaid and also under said statute, was not liable to plaintiff for the alleged negligence of defendant Frisbie. It was further alleged that said statute did not relieve defendant Frisbie of liability for injuries caused to plaintiff by his said negligence, and that defendant insurer is not relieved from its obligations under said insurance policy. Plaintiff asked the court to construe said Sec. 4, and declare that said statute did not relieve defendants from legal responsibility to plaintiff, and to construe defendant insurer's said insurance policy and declare that the same included defendant Frisbie's liability in the circumstances presented.
Defendants Frisbie and insurer claim that under said statute defendant Frisbie is not to be held liable to plaintiff on account of the casualty aforesaid, and further that defendant insurer is under no obligation under its said insurance policy to defend said action by plaintiff against defendant Frisbie or to pay any judgment obtained by plaintiff against defendant Frisbie for damages arising out of said casualty.
Plaintiff's reply denied that said statute relieved defendant Frisbie of legal responsibility to plaintiff for his negligence in the circumstances involved, and further pleaded that 'if' said statute 'attempts, by its terms, to relieve' defendant Frisbie from any and all liability for negligence in failing to observe the motor vehicle rules and regulations, said statute is void and unconstitutional in that it contravenes the Fifth and Fourteenth Amendments to the Constitution of the United States and also contravenes the Constitution of the State of Missouri, V.A.M.S., Secs. 10, 24, 26 and 28 of Art. I and Secs. 40 and 46 of Art. III thereof, and that said statute contravenes and is superseded by the Soldiers' and Sailors' Relief Act, 50 U.S.C.A.Appendix, Sec. 501 et seq.
The instant case involves only damages to plaintiff's automobile and personal injuries to plaintiff. No amount is mentioned in plaintiff's petition. Plaintiff's attorney offered to prove, which offer the court considered immaterial, that plaintiff received serious injuries and his automobile was destroyed; that his wife received serious injuries and his child was killed; and stated he would not detail the injuries or state the amount plaintiff was claiming. Certain motions and pleadings in the record, but not the proof, disclose plaintiff had sued defendant Frisbie for $20,500 damages, and that said suit had been dismissed prior to the instant trial. It was not the instant suit; and plaintiff will likely amend his petition before he proceeds with his action for damages.
The trial court, so far as material, found the fact of the casualty at the time and place mentioned but expressly made no finding on the issue of defendant Frisbie's negligence or any issue as to damages, expressly leaving said issues 'open for future determination according to law.'
The court further found that the Missouri State Guard was a voluntary association; that defendant Frisbie's attendance at the training maneuvers was voluntary and not the result of any general orders, and that there was no emergency or public exigency that required military action or the presence of defendant Frisbie; that the 'jeep' was the property of the Missouri State Guard and was being operated by the defendant Frisbie on his return home with official permission; that defendant insurer's policy of insurance was intended to and did insure the officers and members of the Missouri State Guard and insured defendant Frisbie against liability for damages to plaintiff up to $100,000 for bodily injuries and $5,000 for property damage for each accident; that defendant Frisbie is not exempted from legal liability for said injuries and damages to plaintiff by the provisions of Sec. 4, Laws 1943, p. 646, 'and insofar as said statute purports to exempt said defendant from legal and civil liability for negligence in the operation of vehicles on the public highways, in the absence of public exigency or military emergency and necessity, said statute is unconstitutional and violates the Constitution of Missouri and of the United States.' Judgment accordingly.
Defendants Frisbie and insurer contend we have jurisdiction of this appeal on the ground the amount in controversy is $100,000 as between plaintiff and defendant insurer, the maximum amount of liability under the policy. They cite only ...
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