Cowell v. Employers' Indem. Corp.

• Decision Date: 20 December 1930
• Parties: Edmund W. Cowell v. Employers Indemnity Corporation, Garnishee of Daniel Pupillo, Appellant
• Court: Missouri Supreme Court

34 S.W.2d 705

326 Mo. 1103

Edmund W. Cowell v. Employers Indemnity Corporation, Garnishee of Daniel Pupillo, Appellant

Supreme Court of Missouri

December 20, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

Taylor Chasnoff & Willson and Hugo Monnig, Jr., for appellant.

(1) The plaintiff who seeks to recover under an insurance policy has the burden of proving a risk and cause of loss within the terms of the insuring clause of the policy. O'Connor v. Insurance Co., 169 Mo.App. 150; 6 Cooley's Briefs on Insurance (2 Ed.) 5001ff; Kansas City Regal Auto Co v. Old Colony Ins. Co., 187 Mo.App. 514; Parshall v Mechanic's & Traders Ins. Co., 245 S.W. 354; Warren v. Farmers Mut. Fire Ins. Co., 130 Mo.App. 226; Laessig v. Travelers Protective Assn., 169 Mo. 272. (2) Even where the testimony of witnesses is all one way and is uncontradicted, it should be passed upon by the jury, and it is error for the court to direct a verdict thereon in favor of the party whose theory of the case it tends to prove. Gannon v. Gas Light Co., 145 Mo. 502; Bryan v. Hickman, 4 Mo. 106; Milliken v. Commission Co., 202 Mo. 637; Reynolds v. Hood, 209 Mo. 611; Lafferty v. Casualty Co., 229 S.W. 750; St. Louis Union Trust Co. v. Hill, 223 S.W. 434; State ex rel. Pabst Brewing Co. v. Ellison, 226 S.W. 577. (3) Sec. 1415, R. S. 1919, applies only to instruments charged to be executed "by the other party" to the litigation. It does not apply to instruments charged to be executed by third parties who are strangers to the litigation. Where the statute does not apply, even though the execution of the instrument is not denied under oath, its execution must be proved. Ruckman v. Milling Co., 139 Mo.App. 256.

Arthur Stahl, Eugene Andrews and James J. O'Donohoe for respondent.

(1) There is no merit in appellant's position that respondent failed to prove his case; neither is there any merit in appellant's views to the effect that it devolved on respondent to prove the truck, at the time of the accident, was used for a purpose named in the schedule of statements, or to prove that respondent was not in the employ of assured: (a) The use of the truck for other than private business or delivery purposes, as well as employment of respondent, are excepted risks; and the burden of pleading and proving them rests on appellant. Stephens v. Fire Assn., 139 Mo.App. 369; Scottish Nat. Ins. Co. of America v. Adams, 122 Ill.App. 471; Belt Automobile Ind. Assn. v. Transfer & S. Co., 211 Ala. 84; 6 Cooley's Briefs on Insurance (2d), 5003, 5004, 5182, 5183, 5449, 5450; Aetna Ins. Co. v. Elec. Light & Power Co., 107 Ky. 77; Schrepfer v. Rockford Ins. Co., 77 Minn. 291. (b) By taking charge of the defense in the damage suit, insurer waived the right to assert that the injuries to respondent did not come within the policy coverage. Rieger v. Guarantee & Acc. Co., 202 Mo.App. 184; Fairbanks Canning Co. v. Guaranty & Acc. Co., 154 Mo.App. 327; Boyle Mining Co. v. Fidelity & Cas. Co., 126 Mo.App. 104. (c) Withdrawing from the defense of the damage suit brought against the assured, and disclaiming liability, constituted a breach of contract and put an end to any defense with respect to the use of the truck, employment of respondent or that the insured truck was not the one that injured respondent. Goerss v. Indemnity Co. (Mo. App.), 3 S.W.2d 272, certiorari quashed, State ex rel. v. Daues (Mo.), 13 S.W.2d 1059. (d) Appellant put non-liability on the grounds that assured made a false statement with respect to the accident; that he had not paid the judgment and that the judgment was not by a court of last resort. Insistence upon those grounds alone constitutes a waiver of all others. Hay v. Bankers Life Co., 207 Mo.App. 277. (e) "The issue or issues made upon the denial and reply shall be the sole issue or issues tried." Sec. 1864, R. S. 1919. (f) The endorsement is overridden by the insuring clause in the policy. Goerss v. Indemnity Co. (Mo. App.), 3 S.W.2d 272; Jedlicka v. Mut. Cas. Co. (Mo. App.), 14 S.W.2d 535; Kurre v. Am. Indemnity Co. (Mo. App.), 17 S.W.2d 685. (g) The insuring clause precedes and nullifies the endorsement, because in conflict. Where two clauses of a contract conflict, the first governs; and, further, where there is a conflict the clause promising indemnity controls rather than the one forfeiting indemnity. Drucker v. Wes. Indemnity Co., 204 Mo.App. 516; Howell v. Ins. Co., 215 Mo.App. 516, certiorari quashed, 305 Mo. 607. (2) That the assured injured respondent with his truck was adjudged in the damage suit and that question is foreclosed. Meyer v. Meyer, 236 S.W. (Mo. App.) 382. It is the well-established rule concerning the application of the doctrine of res judicata that "when one is to protect another from liability he is bound by the result of a litigation to which such other is a party, if he had notice of the litigation and opportunity to contest and manage it." Garrison v. Baggage Trans. Co., 94 Mo. 130; Washington Gas Light Co. v. District of Columbia, 161 U.S. 316; B. Roth Tool Co. v. New Amsterdam Cas. Co., 161 F. 709. (3) The court did not err in directing a verdict for respondent. (a) The rule to the effect that, where the evidence is all one way and is uncontradicted, it should be passed upon by the jury, has its exceptions, which apply in the instant case. Wendorff v. Life Ins. Co., 318 Mo. 363, 57 A. L. R. 615. (b) When both parties ask for a directed verdict all questions of law and fact are for the court, and the only question for review by the appellate court is whether there is any evidence to support the verdict. Catlin v. Moynihan, 76 Colo. 164; Pearlman v. Snitzer, 112 Neb. 135; De Burg v. Armenta, 22 N. M. 443; Banfield v. Crispen, 111 Ore. 388; Langbehn v. Ins. Co., 41 S.D. 581; Security Life Ins. Co. v. Bates, 144 Ark. 345. (c) When plaintiff makes a prima-facie case, whether by oral or documentary evidence, the burden is cast on defendant to plead and prove an affirmative defense, and, failing to do so, if tried by jury, the trial court is bound to direct a verdict for plaintiff, and if tried by the court without a jury, the court should give a peremptory declaration of law for plaintiff. Renfro v. Ins. Co., 148 Mo.App. 258; Winn v. Modern Woodmen, 157 Mo.App. 1; Dezell v. Fidelity & Cas. Co., 176 Mo. 253; Hendley v. Globe Refining Co., 106 Mo.App. 20; Knisley v. Leathe, 178 S.W. (Mo.), 543; Stewart v. Legion of Honor, 36 Mo.App. 319; May v. Crawford, 150 Mo. 504. (d) Where the evidence is such that reasonable minds cannot draw different conclusions therefrom the trial court should give a peremptory instruction or a peremptory declaration of law, as the case may be. Miller v. Dunham, 186 S.W. (Mo. App.) 29; Enterprise F. & C. O. I. Co. v. Stigall, 206 S.W. (Mo. App.) 390. (e) When right result is reached and judgment is for right party erroneous instructions or declarations of law are disregarded. Petersen v. Transit Co., 199 Mo. 331; Woody v. Railroad, 104 Mo.App. 678. (f) By directing a verdict for respondent the court deprived appellant of no constitutional right. Davidson v. Ins. Co., 151 Mo.App. 561; McGuire v. Blount, 199 U.S. 142. (4) By the reinsuring agreement appellant became "the other party" to the insurance contract; and appellant's reply being unverified, the execution of the policy is admitted. Sec. 1415, R. S. 1919. (a) Taking charge of the defense of the damage suit, waived proof of execution. (b) By withdrawing from defense of damage suit insurer estopped itself from asserting failure of proof of execution. (c) Appellant's reply admits execution. (d) The objection that the policy had not been properly identified cannot serve as an objection against failure of proof of execution. Objection to evidence must be specific and state the correct reason so that the court can intelligently rule. Gary v. Averill (Mo.), 12 S.W.2d 749; Elsea v. Smith, 273 Mo. 409.

Cooley, C. Davis, C., concurs.

OPINION

COOLEY

This is a garnishment proceeding in which plaintiff recovered judgment for $ 7,998.33 against the garnishee, Employers Indemnity Corporation, from which the latter appealed.

In February, 1917, the Western Indemnity Company of Dallas, Texas, issued to Daniel Pupillo an automobile indemnity insurance policy insuring him for a period of one year against loss by reason of liability on account of personal injury done to others through the ownership and use of a certain Ford automobile truck described in the policy, the amount of liability for one person being limited to $ 5,000. Pupillo struck and injured plaintiff with his truck. Plaintiff sued, and in June, 1918, recovered judgment against Pupillo for $ 7500 on account of said injuries. That judgment was revived in 1927, whereupon execution was sued out and the present defendant, which had taken over the assets and assumed the liabilities of the Western Indemnity Company, was summoned as garnishee. Plaintiff filed interrogatories, which the garnishee answered under oath. Plaintiff then filed a denial of the garnishee's answer, and to such denial the garnishee filed reply, as provided by Section 1864, Revised Statutes 1919. Since the issues to be tried in this proceeding are presented by plaintiff's said denial and the garnishee's reply thereto (Section 1864, supra) we need not further note the interrogatories and the garnishee's answer thereto.

The pleadings on both sides are long, especially plaintiff's. In his denial he pleads in extenso the facts upon which he relies for recovery. He pleads the issuance to Pupillo of the policy of insurance by Western Indemnity Company; that while said policy was in force he was injured by being struck by the truck therein described while same was being operated by Pupillo, within the coverage of...