Couch v. Landers

• Decision Date: 08 September 1958
• Docket Number: No. 46469,No. 2,46469,2
• Citation: 316 S.W.2d 588
• Parties: Alfred B. COUCH, Plaintiff-Respondent, v. Lucille B. LANDERS, Defendant-Respondent, Missouri Union Insurance Company, a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 588

316 S.W.2d 588

Alfred B. COUCH, Plaintiff-Respondent, v. Lucille B. LANDERS, Defendant-Respondent, Missouri Union Insurance Company, a Corporation, Defendant-Appellant.

No. 46469.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1958.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 13, 1958.

Goldenhersh, Goldenhersh, Koebel & Gallagher, Samuel J. Goldenhersh, St. Louis, Gerald A. Rimmel, St. Louis, C. William Garver, Kansas City, for defendant-appellant.

Tipton, Birmingham, Taylor & Furry, William E. Tipton, Kansas City, for plaintiff-respondent.

Gordon & Cochrane, William W. Cochrane, Jr., Kansas City, for defendant-respondent.

BOHLING, Commissioner.

This is an appeal from a judgment in Case No. 593,678 in the Circuit Court of Jackson County, Missouri, for $14,000 on a joint motion for judgment on the pleadings by plaintiff, Alfred B. Couch, and defendant-cross-claimant, Lucille B. Landers, against defendant Missouri Union Insurance Company, a corporation. The corporate defendant, sometimes herein referred to as the Missouri company, appealed and contends error occurred because its attorney was unauthorized to waive any of its substantial legal rights (as attempted in the motion to dismiss quoted infra), and because the court denied appellant leave to file answer to the petition and cross-claim, and entered judgment on the pleadings.

This suit arises out of Case No. 574,524 in said circuit court, entitled 'Lucille B. Landers v. Carl J. Mayfield and Luther Roy Cole,' in which said plaintiff (a defendant herein), sued on April 28, 1954, for the wrongful death on April 22 of her husband, John Landers, as the result of an automobile collision occurring April 17, 1954. Alfred B. Couch was Mrs. Landers' attorney of record. On February 8, 1956, the jury returned a verdict for Mrs. Landers and against Mayfield for $15,000 and in favor of Cole and against Mrs. Landers. Mrs. Landers' motion for new trial as to Cole and Mayfield's motion for new trial were overruled. Mrs. Landers and Mayfield filed separate notices of appeal. In April, 1956, Mrs. Landers and Mayfield agreed to compromise said judgment for $14,000, and the appeals were never perfected.

Mayfield had automobile liability insurance policy No. OAU 3F 7244 with the Insurance Company of Texas (sometimes referred to herein as the Texas company), of Dallas, Texas, covering the period from November 6, 1953, to November 6, 1954.

We digress to state that the Insurance Company of Texas, designated as the 'Ceding Company,' and Missouri Union Insurance Company, designated as the 'Reinsurer,' entered into a 'Treaty of Reinsurance' on September 30, 1955, which was terminated September 30, 1956. This led to the Missouri company's involvement as hereinafter developed.

A number of claims against insured Mayfield arose out of said collision, and the Texas company gave the matter 'Our Claim File 58200. Assured: Carl J. Mayfield et al. Claimants: Various. Policy: OAU-3F 7244. Date of Accident: 4-17-54,' and Melvin L. Kodas was retained as attorney by the Texas company. Attorney Kodas reported to the Texas company from time to time on the status of claims, including Mrs. Landers', against said company's assured Mayfield, requested and received remittances from said company for various expenses incurred, claims settled and services rendered. He advised there was little hope of effecting a satisfactory settlement with Mrs. Landers.

On December 30, 1955, the Missouri company requested attorney Kodas to advise on the status of Texas company's Claim 58200, etc. On January 20 attorney Kodas answered the above inquiry in detail.

Attorney Kodas, April 10, wrote the Missouri company he had effected an authorized $14,000 settlement of Mrs. Landers' $15,000 judgment and requested checks for $14,000 payable to 'Lucille B. Landers and A. B. Couch and Haskell Imes, her attorneys,' and $65.90 payable to the clerk of the court for court costs; and the Missouri company, April 30, forwarded its drafts No. 5923 for $14,000 and No. 5922 for $65.90, payable as requested, instructing attorney Kodas to supply it with the closing papers in triplicate that it might make proper proof to the reinsurer.

On June 8, attorney Kodas wrote the Missouri company, stating that Mrs. Landers and her attorney were in dispute as to the division of the $14,000.00; that the appeal time had expired; and that he was holding the checks as both had assured him they would abide by the compromise.

The instant suit, No. 593,678, was filed September 17, 1956. Plaintiff Couch's petition contained, among others, allegations covering the suit for the wrongful death of Mr. Landers and the agreement to compromise the $15,000 judgment for $14,000; alleged that Mrs. Landers agreed that plaintiff, her attorney in said action, was to receive fifty per cent of any sum recovered as a result of his services and, so far as material here, alleged in substance (par. 5) that on said April 17, 1954, defendant Missouri Union Insurance Company had in force and effect a liability insurance policy insuring Mayfield in an amount of at least $15,000 and said defendant became liable for the payment of said $15,000 judgment; that said Missouri company defendant said action for wrongful death, and, on behalf of Mayfield, appealed said judgment, and, while said appeal was pending, through the efforts of plaintiff with the expressed concurrence of Mrs. Landers, it was agreed that in consideration of the dismissal of said appeal Mrs. Landers would accept and receive $14,000 in full settlement and would satisfy said judgment of record; (pars. 6 and 7) that defendant Lucille B. Landers refused and still refuses to consummate said settlement by accepting and endorsing the check and draft of defendant Missouri company; (par. 8) that defendant Landers is indebted to plaintiff for $7,000; and (par. 9) that plaintiff has a lien in equity for $7,000 against said $14,000. Plaintiff prayed for a judgment of $7,000 against defendant Landers, a decree constituting the same a lien against said $14,000 in the hands of defendant Missouri company, and an order directing the Missouri company to pay $7,000 to plaintiff and $7,000 to defendant Landers and for general relief.

The Missouri company, September 19, 1956, forwarded the petition and summons in Couch v. Landers et al. to attorney Kodas, stating: 'Please take the appropriate action.' It requested the return of its drafts.

Attorney Kodas wrote the Missouri company September 24, returning its drafts 'No. 5923' for $14,000 and 'No. 5922' for $65.90. He stated he felt it a border line matter whether a cause of action had been stated against 'our company'; that the petition recognized the Landers v. Mayfield judgment had been 'compromised for $14,000 and that our company stands ready to pay this sum'; that if defendant Landers' answer was to the same effect as the petition then even though 'we did not prevail in our motion to dismiss, we could be' certain no interest would accrue by a tender of two checks in the amounts mentioned and their deposit with the clerk of the court. This was conditioned as follows: 'In the event you agree with our opinion we would appreciate your voiding out the enclosed checks * * * and reissuing drafts in the respective amounts which we will immediately tender to the court, securing receipts therefor.'

The following day, September 25, attorney Kodas filed the motion to dismiss hereinbefore mentioned, to-wit: 'Comes now the defendant, Missouri Union Insurance Company, and moves that plaintiff's petition be dismissed insofar as this defendant is concerned and as grounds therefor states that plaintiff's petition fails to state a cause of action against this defendant; that further this defendant stands ready and has always stood ready since the agreement described in Paragraphs 3 and 4 of plaintiff's petition to pay the court costs herein involved and the sum of $14,000.00 to the plaintiff and co-defendant, Lucille B. Landers.' Respondents stress the portion of the motion following the semi-colon to sustain their motion for judgment on the pleadings.

On September 27, 1956, the Insurance Company of Texas, as the 'Ceding Company' and Missouri Union Insurance Company, as the 'Reinsurer,' mutually agreed to terminate, 'as of midnight, September 30, 1956,' their aforesaid agreement of September 30, 1955, which termination agreement provided, among other things, 'that as from October 1, 1956, the Reinsurers shall have no further liability in respect to any policies covered hereunder.'

On October 3, defendant Landers filed her separate answer, counterclaim against plaintiff, and cross-claim against defendant Missouri Union Insurance Company for a declaratory judgment. This answer and counterclaim is not material to the judgment under review. The cross-claim of Mrs. Landers against said Missouri company contained allegations to like effect as those set forth in plaintiff's petition herein, including in par. 6 charges to like effect as the charges in par. 5 of plaintiff's petition, hereinbefore mentioned; and stated she had refused to effectuate the compromise in Landers v. Mayfield because of the controversy between her and plaintiff over said $14,000. She prayed the court to declare the rights and duties of the parties, determine the amount of plaintiff's attorney's fee, if any, and for general relief.

On October 9, attorney Kodas filed a motion to dismiss defendant Landers' cross-claim, said motion being to the same effect as the motion to dismiss plaintiff's petition, quoted supra.

Insurance Company of Texas issued its drafts, dated November 6, 1956, No. B 52709 for $14,000 payable to 'Lucille B. Landers and A. B. Couch and Haskell Imes, her attorney' and No. B 52708 for $65.90 payable to the 'Clerk of Circuit Court.'

Attorney Kodas, November 8, advised the attorneys for plaintiff and defendant Landers that he had received from his client...