Ford v. Stevens Motor Car Company
| Decision Date | 06 April 1920 |
| Citation | 220 S.W. 980,203 Mo.App. 669 |
| Parties | J. W. FORD, Respondent, v. STEVENS MOTOR CAR COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.
AFFIRMED.
Judgment affirmed.
Leonard & Sibley, R. H. McRoberts and Shepard Barclay for appellant.
(1) The circuit court erred in not instructing for a verdict for this defendant appellant, because plaintiff's own proof is that appellant is not a party to the original contract. The petition avers that appellant was a party thereto, but there is a failure of proof thereof. Koons v. Car Co., 203 Mo. 227; Henry Co. v. Bank, 208 Mo. 209. (2) There was a failure of proof of the allegation that the so-called insurance liability contract was "in consideration of his giving to the defendants the order" for the purchase of the car, whereas the proof of plaintiff is that the sale was closed, and the talk of the salesman Barr (about exchange of insurance) was some time "after the deal was made." Davis v. Drew, 132 Mo.App. 503. (3) The petition does not aver any assumption by appellant of a contract made by the Priesmeyer Co.; yet that is the theory submitted for recovery by the plaintiff's first instruction, under allegations that both defendants made the contract. That instruction was error because the contract alleged is not supported by the proof; and the failure of proof should have resulted in a peremptory instruction for appellant. Laclede Co. v. Iron Works, 169 Mo. 137; Eyerman v. Cemetery Assn., 61 Mo. 489; Green v Cole, 127 Mo. 587; Henning v. Ins. Co., 47 Mo 425; Lanitz v. King, 93 Mo. 513. (4) The first instruction for plaintiff is erroneous because it assumes Barr had power as agent to bind the appellant when he was then agent for another company, and his agency to make the "liability" agreement was disputed, and in issue and on the facts Barr had no power to make the alleged insurance contract, after the contract of sale was complete. Butler v. Dorman, 68 Mo. 298; Mechem, Agency (2 Ed.), sec. 902. But it was also error so to assume a fact in issue. (5) The refusal of appellant's first requested instruction was error. Barr's agency and power to make the contract in suit were at issue, and unless the jury found that he was authorized to make it, the appellant would not be bound by his statement to plaintiff about insurance on the car. Agency of Barr was a fact to be proven by plaintiff. Brauckman v. Leighton, 60 Mo.App. 38; Stewart v Wood, 63 Mo. 252; Atlee v. Fink, 75 Mo. 100. (6) The appellant's second request for instruction should have been given, as appellant would not be liable for a mere expression of opinion by a salesman as to the effect of documentary contracts in the circumstances shown here. (7) The plaintiff's first instruction is erroneous in authorizing a recovery for the amount of the Carradine judgment to which appellant was no party, and without finding of notice to it of that suit. (8) The court erred in repeating the comment on the default of appearance of the Priesmeyer Co. and statement that it "confessed" the plaintiffs' case. Reeves v. Lutz, 191 Mo.App. 550; Railway v. Harriett, 80 Tex. 73. (9) The court erred in refusing and amending appellant's instruction as to appellant "assuming obligations" of the Priesmeyer Co. (10) The supposed agreement sued on is too vague and uncertain to be enforced as a contract. Verbal agreements in regard to insurance must be sufficiently specific to show the risk, the subject matter, the time and the parties; this was not. Trask v. Ins. Co., 58 Mo.App. 431; Whitman v. Ins. Co., 128 Wis. 124; Benner v. Ins. Co., 229 Pa. 82; Mooney v. Merriam, 77 Kans. 305. (11) The "indemnity" contract sued on was illegal in 1912 and not authorized by the law of Missouri, as between bailor and bailee. Insurance "on" Mo. Laws 1911, p. 273, sec. 6996; Sec. 8523, R. S. 1909 (Acts 1911, p. 330) (12) That a bailee cannot by contract lawfully become exempt from liability for his own negligence is a sound principle often recognized. Bank v. Smith, 62 Pa. 47; Blanton v. Dold, 109 Mo. 64. (13) The so-called "liability" contract is void as against public policy, as between these parties, because plaintiff was bailee of the car and his contract to recover for his own negligence in the care of the bailed article is illegal and void. Am. Auto Ins. Co. v. Commissioner, 174 Mich. 295; Am. Co. v. Bleakley, 157 Iowa 445; Greenhold, Public Policy, p. 306; Mo. Laws, 1911, p. 330, sec. 12, subd. 9. (14) The verdict and judgment do not dispose of all the causes of action sued upon, and are not responsive to the issues of the pleadings. The motion in arrest should have been sustained. Bricker v. Railway, 83 Mo. 391; Maloy v. Railway, 178 S.W. 224; Gawk v. Millovich, 203 S.W. 1006; Thresher Co. v. Speak, 167 Mo.App. 470; State v. Modlin, 175 Mo. 684.
Fauntleroy, Cullen & Hay for respondent.
(1) An oral contract, whereby one agrees to insure property owned or used by another, or to procure insurance upon it, is valid and binding, and if the promissor fails to effect the insurance, he is liable for the resulting damages. Dawson v. Waldheim, 80 Mo.App. 53-54; General Cartage & Storage Co. v. Cox, 78 N.E. 371; Tower v. Grocers' Supply and Storage Co., 28 A. 229; Brousard v. South Texas Rice Co., 131 S.W. 412; Brick Co. v. Hogsett & Woodward, 73 Mo.App. 432; Lindsay v. Pettigrew, 59 N.W. 726; Campbell v. American Fire Insurance Co., 40 N.W. 661; Russell v. O'Connor, 139 N.W. 148; Rezac v. Zima, 153 P. 500, 47 Ins. L. J. 269; Evan Reed v. Wurts, 187 Ill.App. 383; Struzwski v. Ins. Co., 166 N.Y.S. 363; National Co. v. Cramer, 114 N.E. 427; King v. Phoenix Ins. Co., 101 Mo.App. 163, s. c., 195 Mo. 290. (2) Where one party substitutes himself as a party to an oral or written contract, and agrees to assume it and carry out its terms and conditions, his liability relates back to the date of the contract, and he is bound the same as an original party. Mitrovich v. Fresno Fruit-Packing Co., 55 P. 1064; Bach, Cory & Co. v. Boston & M. Consol. Copper & S. Min. Co., 41 P. 75; York Mfg. Co. v. Bonnell, 57 N.E. 590; Wiggins Ferry Co. v. Railroad Co., 73 Mo. 403; Winn v. Lippincott Invest. Co., 125 Mo. 528, 28 S.W. 998; Caston v. Stafford, 92 Mo.App. 182; Atlantic, etc., R. R. Co. v. Atlantic, etc., Co., 147 N.C. 368, 61 S.E. 185, 125 Am. State Rep. 563, 564; Cutting Packing Co. v. Packers' Exchange, 86 Cal. 574, 21 Am. St. Rep. 63, 25 P. 52, 10 L. R. A. 369; Beckwith v. Seldon, 108 Cal. 742, 39 Am. & Eng. Ann. Cas. 965. (3) Where one becomes a party to a contract as a substitute for another party originally bound, there is no variance, even though the petition charges the contract was originally made by the one who became substituted as a party, and error cannot be alleged when the testimony is not objected to, and no affidavit of surprise filed. Bank v. Phillips, 179 Mo.App. 492; Turner v. Butler, 126 Mo. 138. (4) The contract in this case was entire and not separable, and the defendant became bound by all its obligations. Wooton v. Walters, 110 N.C. 251, 254, 14 S.E. 734, 736; Potter v. Potter, 43 Ore. 49, 72 P. 702; In re Hellams, 223 F. 460, 461. (5) The issue of illegality not having been presented by the pleadings is not involved, and cannot be considered in this appeal. Carter v. Insurance Co., 275 Mo. 93; Bell v. Warehouse Co., 205 Mo. 493. (6) An agreement to insure one against the consequences of his own negligence is not void. Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 U.S. 312, 29 L.Ed. 873; Waters v. Merchants Louisville Ins. Co., 11 Pet. (U.S.) 213, 9 L.Ed. 691; Copeland v. New England Mar. Ins. Co., 2 Metc. (Mass.) 432; Walker v. Maitland, 5 B. & Ald. 171, 7 E. C. L. 101; Wager v. Providence Ins. Co., 150 U.S. 99, 14 S.Ct. 55, 37 L.Ed. 1013; Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, 2 N.E. 103, 52 Am. R. 728; Roos v. Philadelphia, etc., R. Co., 199 Pa. 378, 49 A. 344. (7) Where there are several counts in a petition, and the plaintiff elects to proceed on one, and the jury finds a verdict on one, or the cause of action stated in the several counts is the same, error cannot be alleged, because there is not a separate verdict on each count. Ranney v. Bader, 48 Mo. 539; Hoyle v. Farquharson, 80 Mo. 377; Downing v. M., K. & T., 70 App. 567; Brady v. Connelly, 52 Mo. 19.
This action based on an oral contract of insurance resulted in a judgment below against defendant Priesmeyer-Stevens Automobile Company (herein called the Priesmeyer Company), and defendant Stevens Motor Car Company (herein called Stevens Company), for $ 4276.75, the same being rendered against the Priesmeyer Company by default and against the Stevens Company after a contest before a jury. The cause is brought here for review by the latter company, after the customary steps were taken for that purpose.
The Stevens Company was originally known as Waverly Sales Company and then as Stevens Waverly Automobile Company, there being but the one corporation having from time to time the different names. Frank E. Stevens was an officer of and active in the management of both the Priesmeyer and Stevens companies.
The petition is in three counts, but demurrers were sustained at the trial to the second and third counts, and the present judgment is based on the first count of the petition, which after formal averments as to the incorporation of the defendants, alleges that in September, 1912, both defendants agreed to exchange, sell and deliver to plaintiff a Waverly electric motor vehicle Model No. 100 for the consideration of $ 1000 and $ 1240 evidenced by a note, payable ninety days from the date of delivery, and in consideration for...
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