Fireman's Fund American Ins. Co. v. Ditz, No. 43273

• Court: Missouri Court of Appeals
• Writing for the Court: DOWD
• Citation: 630 S.W.2d 123
• Parties: FIREMAN'S FUND AMERICAN INSURANCE COMPANY, Plaintiff-Respondent, v. Loretta B. DITZ and Arthur E. Boyer, Jr., Defendants, Arthur E. Boyer, Jr., Defendant-Appellant.
• Decision Date: 29 December 1981
• Docket Number: No. 43273

Page 123

630 S.W.2d 123 FIREMAN'S FUND AMERICAN INSURANCE COMPANY, Plaintiff-Respondent,
v.
Loretta B. DITZ and Arthur E. Boyer, Jr., Defendants,
Arthur E. Boyer, Jr., Defendant-Appellant. No. 43273. Missouri Court of Appeals, Eastern District, Division Two. Dec. 29, 1981.
Motion for Rehearing or to Transfer to Supreme Court Denied
Feb. 19, 1982.
Application to Transfer Denied April 13, 1982.

Frank J. Maginn, St. Louis, for defendant-appellant.

W. Munro Roberts, Jr., Ted L. Perryman, St. Louis, for plaintiff-respondent.

Page 124

DOWD, Presiding Judge.

Defendant, Arthur Boyer, Jr., appeals from a judgment in favor of plaintiff Fireman's Fund Insurance Company on its petition for declaratory judgment. The cause was submitted to the trial court on the following stipulation of facts: In June of 1973 William H. Ditz (son) and his parents, Mr. and Mrs. William Ditz purchased a Plymouth automobile. Title to the automobile was placed in the parents' names in order to obtain financing for the purchase. However, the vehicle was purchased for the son's use and all payments on the car were made by him. Prior to the time the Plymouth was purchased Mr. and Mrs. Ditz carried insurance with plaintiff on another vehicle. When the Plymouth was purchased it was added to the policy and an additional premium paid to plaintiff for its coverage.

In August of 1974, the son married and moved away from home taking the Plymouth with him. Subsequently plaintiff, at the son's instance, removed the Plymouth from the parents policy (# Z2344007) and issued a separate policy (# Z3617075) in the name of the son covering the Plymouth.

In May 1975, while driving her son's Plymouth Mrs. Ditz was involved in an automobile collision with defendant Boyer. At the time of the collision legal title to the Plymouth remained in Mr. and Mrs. Ditz and Mrs. Ditz was a regular user of the Plymouth by an arrangement whereby the son would drive the Plymouth to the parents' house and leave it there several days a week for Mrs. Ditz's use.

In October, 1976 plaintiff filed its petition for declaratory judgment in which it sought to be relieved of any liability under the policy issued to Mr. and Mrs. Ditz or the policy issued to their son. Plaintiff also sought an order restraining Boyer from instituting an action based on either of the two policies. ¹

In May, 1980, ² the court issued a summary judgment in favor of plaintiff stating inter alia, Policy "# Z2344007 issued to Mr. and Mrs. William Ditz does not insure the 1973 Plymouth Seebring automobile which is the subject of this action." ³

On appeal from this judgment defendant raises four points of error the first being that in reaching its conclusion the trial court erroneously declared and applied the law. The trial court did not include findings of fact and conclusions of law in its judgment but merely cited three cases and one statutory section as support of it. We, therefore, do not know precisely in what manner the court declared and applied the law. Whether it did so incorrectly becomes relevant, however, only when the conclusion reached or the judgment rendered by the court is erroneous.

As we shall explain, we find the trial court's conclusion that the Plymouth was not insured under the policy owned by Mr. and Mrs. Ditz correct therefore we are not concerned with the route taken by the court in arriving at this conclusion.

Defendant's second point does not present anything for our review because it does not set out any ruling or action by the trial court alleged to be erroneous. ⁴ Rule 84.04(d). We decline to address this point.

Defendant's third point suffers from the same infirmity as his second point, however,

Page 125

we shall address it briefly. ⁵ Although inartfully drafted we believe the thrust of defendant's point is that the trial court erred in failing to find Mrs. Ditz and the Plymouth covered under the "other insurance" clause of Policy # Z2344007 owned by her and Mr. Ditz. That clause read:

"Parts I and III If the insured has other insurance against a loss covered by Part I or Part III of this policy, the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or a...