Forsthove v. Hardware Dealers Mut. Fire Ins. Co., 32453

• Decision Date: 18 April 1967
• Docket Number: No. 32453,32453
• Citation: 416 S.W.2d 208
• Parties: Carney V. FORSTHOVE and Joe Forsthove d/b/a Forsthove Brothers and Farm Bureau Mutual Insurance Company, Plaintiffs, Rupert N. Marks, Respondent, Defendant and Cross-Claim Defendant, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Appellant, Defendant and Cross-Claimant.
• Court: Missouri Court of Appeals

Page 208

416 S.W.2d 208

Carney V. FORSTHOVE and Joe Forsthove d/b/a Forsthove Brothers and Farm Bureau Mutual Insurance Company Plaintiffs Rupert N. Marks, Respondent, Defendant and Cross-Claim Defendant, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Appellant Defendant and Cross-Claimant.

No. 32453.

St. Louis Court of Appeals, Missouri.

April 18, 1967.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 18, 1967.

Application to Transfer Denied July 10, 1967.

Ben Ely, Ely & Cary, Hannibal, for defendant-appellant.

J. Andy Zenge, Jr., Canton, for plaintiffs.

Richard J. De Coster, Canton, Thomas R. McGinnis, St. Louis, Carson, Inglish, Monaco & Coil, Jefferson City, for defendant-respondent.

RUDDY, Judge.

This appeal arises out of an interpleader action wherein Carney v. Forsthove and Joe Forsthove (hereinafter referred to as the tort-feasors) and Farm Bureau Mutual Insurance Company, tort-feasors' insurer, were plaintiffs and Hardware Dealers Mutual Fire Insurance Company (hereinafter referred to as Hardware Dealers) and Rupert N. Marks (hereinafter referred to as Marks), Hardware Dealers' insured, were joined as defendants. The trial court sustained a motion of Marks to dismiss the interplea and cross-claim of Hardware Dealers and to pay to movant the balance of the interpleaded fund held in the Registry of the Court. Hardware Dealers appealed.

We must look to the pleadings for all of the facts. The facts, as gleaned from the allegations contained in the bill of interpleader, the answer of Marks and the answer and cross-claim of Hardware Dealers, show that Hardware Dealers had issued to Marks a policy of liability insurance covering an automobile in which the wife of Marks was riding at the time said automobile was involved in a collision with a motor vehicle operated by one of the tort-feasors. The wife of Marks sustained injuries in this collision from which she died. The liability insurance policy issued by Hardware Dealers to Marks contained certain medical payment provisions. Under these provisions Hardware Dealers agreed to pay all reasonable medical expenses incurred within one year from date of accident. The 'named insured' included the wife of the insured and the policy provided that 'the term medical expenses included funeral expenses.' The liability insurance policy of Hardware Dealers also included a provision that if payment to made for medical expenses as defined in the policy Hardware Dealers should be subrogated to any right of the person to whom such payment was made against any third party causing such injuries or death and that such payee should execute to the Hardware Dealers all necessary assignments and transfers of such subrogated rights. As stated heretofore, the wife of Marks was killed as a direct result of a collision with a motor vehicle owned and under the control of the tort-feasors. The funeral bill of the wife of Marks amounted to $1500 and Marks made a claim against Hardware Dealers under the medical expense clause of the policy for that amount. Hardware Dealers paid to Marks the sum of $1500 and demanded that he execute and deliver to it a written assignment and subrogation receipt transferring and assigning to it the rights he had against the tort-feasors. This demand was made pursuant to the terms of said subrogation provision, but Marks failed and refused to make any such assignment.

Marks instituted a cause of action in the Circuit Court at Canton, Missouri, against the tort-feasors under the Missouri Wrongful Death Act to recover for the death of his wife. The Farm Bureau Mutual Insurance Company was the liability insurance carrier on the motor vehicle involved in the accident which was owned and controlled by the tort-feasors at the time of said accident. The Farm Bureau Mutual Insurance Company as the insurer of the tort-feasors entered into a compromise settlement with Marks wherein it was agreed that Marks should receive $19,500 in full settlement of the lawsuit and of any and all claims which he had or might have had growing out of his wife's death. Hardware Dealers served a lien notice upon the tort-feasors and the Farm Bureau Mutual Insurance Company claiming certain subrogation rights and that it was entitled to $1500 of any money or monies which the tort-feasors and their insurer became obligated to pay or agreed to pay to the said Marks.

The tort-feasors and Farm Bureau Mutual Insurance Company alleged in their bill of interpleader that it has been impossible for them to obtain a release from Marks without paying the full sum of $19,500 and that if such payment is made Hardware Dealers will assert an additional claim for $1500 against them. As a result of the impass reached, because of the divergent positions taken by Marks and Hardware Dealers, this bill of interpleader was filed by the tort-feasors and their insurer wherein $19,500 was paid into the Registry of the Court. Plaintiffs in their bill of interpleader pray that Marks and Hardware Dealers be required to interplead and that the court determine which of the defendants is entitled to receive payment of the $1500.

Marks, in his answer to the bill of interpleader, inter alia, alleged that he agreed to accept the sum of $19,500 '* * * in full settlement of all claims which said Rupert M. Marks * * * has or might have against * * *' and tort-feasors and their insurer.

Hardware Dealers, in its answer to the bill of interpleader, inter alia, alleged the following:

'The above mentioned terms of said policy and the demand for payment and the receipted payment thereunder constituted an equitable assignment to this defendant of the claim of said Rupert M. Marks against the plaintiff up to the said sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars, and this defendant became and is subrogated to the rights of said Rupert M. Marks against the plaintiff to the extent of the said One Thousand Five Hundred and No/100 ($1,500.00) Dollar payment.'

In Court I of its cross-claim Hardware Dealers alleged that if the court should hold that it is not entitled to impress any lien or constructive trust upon the fund in court, that it is '* * * entitled to restitution on said sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars so paid by it * * *' to Marks as money had and received.

In Count II of its cross-claim Hardware Dealers alleged that it has '* * * done and performed all things to be done and performed by it under the terms of the said contract' of insurance; and by reason of the breach of said contract by Marks it has been injured and has suffered damages in the sum of $1500 and prays judgment for this amount in the event the trial court should hold that it is not entitled to a lien upon the fund paid into the court.

After Hardware Dealers' cross-claim was filed, Marks filed a motion '* * * to dismiss the cross-claim of Hardware Dealers Mutual Fire Insurance Company * * *.' The ground given by Marks in said motion is that the cross-claim fails to state a claim for which relief can be granted. In the motion to dismiss Marks asked, in the alternative, for a judgment in favor of him directing.

'* * * the Clerk of this Court to pay out the balance of the money held in the Registry of this Court, heretofore deposited by the plaintiffs in this action, for the reason that under the law and the pleadings filed herein, defendant Rupert M. Marks * * * is entitled to all of said money.'

The trial court sustained said motion and dismissed both counts of the cross-claim of Hardware Dealers with prejudice for the reason that said cross-claim failed to state a claim for which relief could be granted and entered judgment in favor of Marks '* * * as prayed for in the separate answer of said Rupert M. Marks * * *' and ordered the balance of the funds held in the Registry of the Court paid to Marks. It appears that at the time this order and judgment was entered only $2000 of the $19,500 paid into the Registry of the Court remained for distribution.

We point out that the liability insurance policy issued by Hardware Dealers to Marks which contained the medical payment provision referred to herein was not filed as an exhibit in the interpleader action, nor was the petition filed by Marks against the tort-feasors under the Missouri Wrongful Death Act filed in this action as an exhibit. We agree with the statement of Hardware Dealers in its brief that the present state of the record is most unsatisfactory for the purpose of presenting to this court the issues here involved. However, as Hardware Dealers points out, it is its desire to have this case decided on the merits and we think the record discloses sufficient facts to understand the positions taken by the respective parties.

It is the contention of Marks that the subrogation provision of the policy issued by Hardware Dealers to him involved a purported assignment and transfer to Hardware Dealers of his cause of action for personal injury against third party tort-feasors and that such is prohibited by the law of this state, citing Travelers Indemnity Co. v. Chumbley, Mo.App., 394 S.W.2d 418. Marks relies on the reasoning of the rule announced in the Chumbley case, that even though the cause of action for personal injuries may survive, still such action may not be assigned either in whole or in part prior to judgment for reasons of public policy and contends that the fact that the purported assignment in the instant case was not used until after the money had been paid in the court or the fact that the cause of action in the instant case was for wrongful death, rather than for personal injury, does not distinguish the present case from the Chumbley case.

Hardware Dealers in its brief admits that the trial court's decision was based entirely on the opinion rendered in Travelers Indemnity Co. v. Chumbley, supra. After paying great respect to the author of the opinion and the court out of which it came, a tribute in...