Cruse v. Government Emp. Ins. Co.

• Decision Date: 07 June 1965
• Docket Number: No. 24180,24180
• Court: Missouri Court of Appeals
• Parties: Kenneth CRUSE and Dorothy J. Cruse, a Minor by Her Father and Next Friend, Kenneth Cruse, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation, Respondent.

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391 S.W.2d 1

Kenneth CRUSE and Dorothy J. Cruse, a Minor by Her Father and Next Friend, Kenneth Cruse, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation, Respondent.

No. 24180.

Kansas City Court of Appeals, Missouri.

June 7, 1965.

Haskell Imes, Kansas City, for appellants.

E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

This is a suit to recover under an insurance policy for property damage sustained by plaintiffs' automobile. Defendant's motion to dismiss the petition for failure to state a cause of action was sustained and plaintiffs have appealed. We examine and consider the petition to determine if it does or does not state a cause of action against defendant insurer.

Plaintiffs' petition alleges (1) that on or about January 24, 1964, they were the owners of a particularly described Ford automobile; (2) that on said date defendant company's insurance policy insuring them as owners and covering said Ford automobile was in full force and effect; (3) that said policy provided liability insurance and comprehensive coverage; (4) that paragraph (1)(a) of the policy reads:

'To pay for loss caused other than by collision to the owned automobile or to a non-owned automobile. For the purpose of this coverage * * * loss caused by * * * malicious mischief * * * shall not be deemed to be loss caused by collision'.

(5) that on or about January 24, 1964, at approximately 2:22 a. m. plaintiff Dorothy J. Cruse was driving said Ford east at the intersection of 13th and Charlotte Streets, Kansas City, Missouri, 'when a certain John J. Marlowe and John Doe, who were then committing a felonious act and then and there had a large quantity of stolen property in the motor vehicle and were then and there engaged in driving in a southerly direction on Charlotte street while fleeing the police, who were in hot pursuit, entered said intersection when the traffic lights then and there were red for southbound traffic, at a speed of 60 miles per hour; that said John J. Marlowe and John Doe at said time and place were acting unlawfully, maliciously and with such reckless disregard of the rights of the plaintiffs as to constitute malicious mischief within the terms of said insurance policy which expressly states that acts of malicious mischief shall not be deemed to be acts caused by collision', and (6) that said Ford was damaged in the amount of $1200, and (7) a prayer for judgment in the sum of $1200, plus interest, penalty for vexatious refusal to pay, and attorney's fee.

Neither the insurance policy nor a copy thereof was attached to the petition, nor was it ever offered or received in evidence. Paintiffs at one time asked to amend by adding the words 'or vandalism' after the words 'malicious mischief' as quoted from the policy, but such addition or amendment was never made.

It is quite apparent that plaintiffs bought liability protection, plus comprehensive coverage, but did not purchase collision insurance. If the property damage done to their Ford automobile was occasioned by 'malicious mischief' then their petition states a cause of action and it was erroneously dismissed. On the other hand, if the damage was caused by 'collision', then the loss was not covered by the policy and the motion to dismiss was properly sustained. Plaintiffs assert that the damage to their automobile was brought about by 'malicious mischief' within the meaning of that phrase under our statutes and under the insurance contract herein.

Our Missouri statutes under Chapter 560 'Offenses Against Property' contain four specific sections dealing with unlawful and malicious destruction or injury to property. One refers to destruction by explosion, another injuring dwelling houses, a third, injury to boats and vessels and, finally, one providing a penalty for 'willfully and maliciously' injuring a host of specifically described properties, including 'or other vehicle'. (Secs. 560.400, 560.395, 560.390 and 560.385, V.A.M.S.).

Plaintiffs have cited cases which they contend support their position. We shall refer briefly, but we think sufficiently, to some of those decisions. In State v. Hadley, Mo., 364 S.W.2d 514, 517, the Supreme Court affirmed a conviction of burglary and ruled that failure to instruct on malicious mischief, which imports only an intent to injure or destroy, rather than theft, did not constitute error.

It was ruled that an employee driving a truck without permission and without intention to permanently deprive the owner thereof was guilty of malicious mischief, rather than theft. Eiswirth Const. &amp Equipment Co. v. Glenn Falls Ins. Co., 241 Mo.App. 713, 240 S.W.2d 973.

The following situations were held to constitute malicious mischief: Tampering with earth-moving vehicle, Zuber et al. v. Clarkson Constr. Co., Mo., 315 S.W.2d 727. Castration of neighbor's bull, State v. McLelland, 312 Mo. 68, 278 S.W. 981. Shooting a neighbor's hogs, State v. Sillbaugh, 250 Mo. 308, 157 S.W. 352, and throwing stones at a street car, State v. Lang, 14 Mo.App. 247. In each of these instances the acts were done willfully and intentionally. In our opinion none of these cases supports plaintiffs' contention.

Plaintiffs have also included in their brief the following quotation from the opinion of Justice Ryland in the 1856 case of State v. Hambleton, 22 Mo. 452, 456:

'One remark more about he malice in these cases and I will have done. In the case of Bromage and another v. Prosser, (4 Barn. & Cress. 247; 10 Eng.Com.Law, 321.) Bailey, J., in delivering the opinion of the court, said: 'Malice in common acceptation means ill-will...