Finkle v. Western Auto. Ins. Co.

• Decision Date: 08 April 1930
• Citation: 26 S.W.2d 843,224 Mo.App. 285
• Parties: ROSE FINKLE, GARNISHER, RESPONDENT, v. THE WESTERN AUTOMOBILE INSURANCE COMPANY, FORT SCOTT, KANSAS, GARNISHEE OF HARRY GRUVERMAN AND JOSEPH GRUVERMAN, COPARTNERS, DOING BUSINESS UNDER THE STYLE AND FIRM NAME OF JOSEPH GRUVERMAN & SON BAKERY, APPELLANT. [*]
• Court: Missouri Court of Appeals

26 S.W.2d 843

224 Mo.App. 285

ROSE FINKLE, GARNISHER, RESPONDENT, v. THE WESTERN AUTOMOBILE INSURANCE COMPANY, FORT SCOTT, KANSAS, GARNISHEE OF HARRY GRUVERMAN AND JOSEPH GRUVERMAN, COPARTNERS, DOING BUSINESS UNDER THE STYLE AND FIRM NAME OF JOSEPH GRUVERMAN & SON BAKERY, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

April 8, 1930

Rehearing Denied 224 Mo.App. 285 at 301.

Appeal from the Circuit Court of the City of St. Louis.--Hon. H. A Rosskopf, Judge.

AFFIRMED.

Judgment affirmed.

Curlee Nortoni & Teasdale for appellant.

(1) (a) The condition in an insurance policy requiring co-operation by the assured is valid and vital. Breach of it exonerates the insurance company from liability on the policy to assured or any third party. Mears Mining Co. v. Md. Cas. Co., 162 Mo.App. 178; Metropolitan Cas. Ins. Co. v. Blue (Ala. Sup.), 121 So. 25; Schoenfeld v. N.J. F. & P. G. Ins. Co., 197 N.Y.S. 606; Coleman v. New Amsterdam Cas. Co., 213 N.Y.S. 522; Rohlf v. Gt. Am. Mut. Indemnity Co., 270 Ohio App. 208, 161 N.E. 232; Bassi v. Bassi, 165 Minn. 100, 205 N.W. 947; Taxicab Motor Co. v. Pac. Coast, etc. Co., 73 Wash. 631, 132 P. 393; Collins v. Standard Acc. Co., 170 Ky. 27, 185 S.W. 112; Roth v. Nat'l Auto etc. Co., 195 N.Y.S. 865 (in this case the dissenting opinion likewise asserting the validity of the condition, saying clearly nonco-operation was shown); Davison v. Md. Cas. Co., 197 Mass. 167, 83 N.E. 407; Texas Glass & Paint Co. v. F. D. Co. (Tex.), 244 S.W. 113; Guerin v. Indemnity Ins. Co. of N. Am., 142 A. 268; Indemnity Co. etc. v. Davis, Admrs. (Va.), 143 S.E. 328; Riggs v. Ins. Co., 270 P. 479. (b) When plaintiff's prima-facie case is rebutted by evidence in part in writing, which is undisputed and completely overcomes and destroys the prima-facie case, the defendant is entitled to an instructed verdict. Wendorff v. Mo. St. Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Yarber v. Conn. Fire Ins. Co. (Mo. App.), 10 S.W.2d 957; Darlington Lbr. Co. v. Ry., 243 Mo. 224, 245; Roach-Manigan Paving Co. v. S.W. Surety Co. (Mo. Sup.), 238 S.W. 119; Campbell v. St. L. & Sub. Ry., 175 Mo. 172; Trimble v. Edwards (Mo. App.), 281 S.W. 121; Metropolitan Cas. Co. v. Blue, 121 So. 25; Kazee v. K. C. Life Ins. Co. (Mo. App.), 217 S.W. 340. (2) Argument, in the course of which counsel unfairly appeals to the passion and prejudice of the jury, and in which he argues matter not based upon evidence in the record, and going to the very essence of the issues, is reversible error. N. Y. Cent. R. Co. v. Johnson (U.S. Sup.), 73 L.Ed. 315; Kirkpatrick v. Wells (Mo. Sup.), 6 S.W.2d 591; Henry v. I. C. R. R. (Mo. Sup.), 282 S.W. 423; Monroe v. C. & A. R. Co., 297 Mo. 633, 247 S.W. 644; Brown v. Conser Laundry Co. (Mo. Sup.), 246 S.W. 166; Harris v. Chouteau Shoe Mfg. Co. (Mo. App.), 16 S.W.2d 633; Warren v. Guidice (Mo. App.), 9 S.W.2d 541; Courter v. Chase & Sons (Mo. App.), 299 S.W. 622; Meyer v. Wells (Mo. App.), 277 S.W. 585; Kull v. Ford (Mo. App.), 261 S.W. 734; Franklin v. K. C., 213 Mo.App. 154, 248 S.W. 616; Williams v. Taxicab Co. (Mo. App.), 241 S.W. 970. (3) Appellate courts should intervene where the verdict is opposed by unimpeached documentary evidence and reasonable probabilities, indicating that the verdict is manifestly the result of mistake, passion or prejudice. Yarber v. Conn. Fire Ins. Co., supra, and cases cited therein; N. Y. Cent. R. R. Co. v. Johnson (U.S. Sup.), 73 L.Ed. 315; Schmitt v. Standard Oil Co. (Mo. App.), 221 S.W. 389; Prospect News Printing Co. v. Swindle (Mo. App.), 15 S.W. 922. (4) An instruction which presents the issues in a false light to the jury is error. (5) Evidence tending to show that garnisher was not seriously injured is admissible as showing damage to garnishee by assured's conduct. Rohlf v. Gt. Am. Mut. Ind. Co., 270 Ohio App. 208, 161 N.E. 232.

Foristel, Mudd, Blair & Habenicht and James J. O'Donohoe for respondent.

(1) No forfeiture is provided for in the policy in question for failure of co-operation; and since courts do not favor forfeitures and never supply words to work forfeitures respondent's peremptory instruction should have been given. Dezelle v. Fidelity & Cas. Co., 176 Mo. 253; Allman v. Commr. Travelers, 277 Mo. 678, 688, 689; Shanebarg v. National Acc. Soc., 263 S.W. (Mo. App.) 512; Malo v. Niagara Fire Ins. Co., 282 S.W. (Mo. App.) 78, 79, 80; Zazkwik v. Hanover Ins. Co., 225 S.W. (Mo. App.) 135, 137; James v. Casualty Co., 113 Mo.App. 622; Coventry v. Mut. Live Stock Ins Assn., 102 Pa. 281. Appellant made no serious effort to locate defendants in the damage suit. It failed to inform the court that the defendants were absent and neglected to ask the court for a continuance of the case; although motion to set aside default and inquiry would be in time during the term, no such motion was filed, but, to the contrary, a misleading letter was sent to another. It had three years after default to obtain relief against the judgment after it was final. Hence, appellant had opportunity to defend, but elected to stand on the technical defense of failure of co-operation. Ornellas v. Fort Dearborn Casualty Underwriters (Mo. App.), 16 S.W.2d 1007. (2) The insuring and co-operation clauses are inconsistent and the former overrides the latter. Goerss v. Indemnity Company of America, 3 S.W.2d 272, writ of certiorari quashed, en banc, 13 S.W.2d 1059; Jedlicka v. Missouri Mut. Cas. Co. (Mo. App.), 14 S.W.2d 535; Kurre v. American Indemnity Co. (Mo. App.), 17 S.W.2d 685. Furthermore, the policy stipulates: "(D) This insurance shall be due and payable to the assured when the amount of any claim or loss covered by this policy shall have been fixed and rendered certain either by final judgment against the assured, or by agreement between the parties with the written consent of the company." (3) The policy further stipulates that: "The company further agrees to defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim covered by this policy." Under condition "C" assureds were prohibited from voluntarily assuming any liability; settling any claim or incurring any expenses," etc. In view of the above promise and requirements, the sudden departure of appellant from the defense of the damage suit was as much a breach of contract, if not more, than if it had been frank with its assureds and refused to defend. Goerss v. Indemnity Company of America (Mo. App.), 3 S.W.2d 272, writ of certiorari quashed, en banc, 13 S.W.2d 1059. (4) The judgment in the damage suit is res judicata and should not have been relitigated in whole or in part. Payne v. Cummins, 207 Mo. 64; 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. The Baggage Trans. Co., 94 Mo. 130; Brunswick Realty Co. v. Ins. Co., 166 N.Y.S. 36; Douglas v. U.S. F. & G. Co., 127 A. (N.H.) 108; Washington Gas Light Co. v. District of Columbia, 161 U.S. 316; B. Roth Tool Co. v. New Amsterdam Cas. Co., 161 F. 709. (5) Under point 1, of points and authorities in appellant's brief, page 19, it is said: "The condition in an insurance policy requiring co-operation by the assured is valid and vital. Breach of it exonerates the insurance company from liability on the policy to assured or any third party." The validity and vitality of the co-operation clause is not involved. Breach of it does not exonerate the insurance company from liability under the policy to the assured or any third party because there is no forfeiture provided for in the policy for failure of co-operation and there are provisions in the policy inconsistent with said co-operation clause. (See authorities under points 1 and 2 of this brief.) Therefore, the cases cited under Point 1 of appellant's brief have no application here. (6) Respondent made out a prima-facie case by proving that she was injured by the automobile insured under the policy in question; that she recovered judgment for said injuries and that same was not paid. Respondent having thus made out her prima-facie case, the burden was then cast on appellant to plead and prove an affirmative defense. Kurre v. American Indemnity Co. (Mo. App.), 17 S.W.2d 685; Rausch v. Bankers Life Co. (Mo. App.), 201 S.W. 919; Mensenworth v. Metropolitan Life Ins. Co. (Mo. App.), 249 S.W. 113; Landrigan v. Missouri State Life Ins. Co. (Mo. App.), 234 S.W. 1042; Peterson v. Railroad, 265 Mo. 480 (89 Mo. cases cited); Bange v. Supreme Council, 179 Mo.App. 21; Winn v. Modern Woodmen, 157 Mo.App. 1; Mulroy v. Knights, 28 Mo.App. 463; Stewart v. Legion of Honor, 36 Mo.App. 319; Force v. Knights of Honor, 41 Mo.App. 106; Chadwick v. Triple Alliance, 56 Mo.App. 478; Gruwell v. Knights and Ladies of Security, 126 Mo.App. 496. McReynolds v. Railroad, 115 Mo.App. 680; O'Malley v. Railroad, 113 Mo. 319; Boon v. Railroad, 20 Mo.App. 235; Gibson v. Zimmerman, 27 Mo.App. 90. Not a word of appellant's evidence is leveled against the respondent's prima-facie case, but is directed alone to establish its untenable affirmative defense of failure of co-operation; therefore, the cases cited under paragraph "B," point 1, of appellant's points and authorities, page 20 of its brief, are inapplicable. (7) No error can be predicated on respondent's argument to the jury for the following, amongst other, reasons the argument was legitimate and respondent was entitled to a directed verdict. (8) Respondent's given instruction No. 2 is technically erroneous, but same is insufficient to constitute reversible error for the following, amongst other, reasons: (a) Respo...