Frohoff v. Casualty Reciprocal Exchange

• Decision Date: 01 March 1938
• Docket Number: No. 24557.,24557.
• Parties: FROHOFF v. CASUALTY RECIPROCAL EXCHANGE.
• Court: Missouri Court of Appeals

113 S.W.2d 1026

FROHOFF v. CASUALTY RECIPROCAL EXCHANGE.

No. 24557.

St. Louis Court of Appeals. Missouri.

March 1, 1938.

Rehearing Denied March 16, 1938.

Error to St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be published in State Reports."

Action for injuries sustained in truck collision by Donald Frohoff, a minor, by his next friend, Arthur J. Frohoff, against E. M. Adams and others, wherein plaintiff obtained judgment and instituted garnishment proceeding against the Casualty Reciprocal Exchange, Bruce Dodson, attorney in fact, in aid of execution on the judgment. To review a judgment against the garnishee, the garnishee brings error.

Reversed and remanded.

Thomas J. Cole, of St. Louis, for plaintiff in error.

Erwin F. Vetter, of St. Louis, for defendant in error.

BENNICK, Commissioner.

This is a proceeding by writ of error sued out in this court at the instance of Casualty Reciprocal Exchange, Bruce Dodson, attorney in fact, the garnishee in a certain garnishment proceeding had in the circuit court of the City of St. Louis in aid of an execution upon a judgment theretofore obtained in that court by Donald Frohoff, the defendant in error.

It appears that the original action had been brought by Frohoff, as plaintiff, against E. M. Adams, St. Louis-Wichita Motor Freight, Inc., and Beekman Terminal & Forwarding Company, a corporation, as defendants; said action having been for damages for personal injuries sustained by said Frohoff as the result of the alleged joint negligence of the defendants in the operation of a certain motortruck which collided with the truck in which Frohoff was riding.

Adams appeared and answered, while the other two defendants, though served with process, made default.

Thereupon a trial was had in said action, resulting in a verdict and judgment in favor of Frohoff, and against all the defendants, for the sum of $2,500. Adams alone appealed from the judgment, his appeal being prosecuted to this court, wherein the judgment as to him was reversed, but affirmed as to the other two defendants. Frohoff v. Adams, Mo.App., 108 S.W.2d 615.

Pending the disposition of Adams' appeal to this court, plaintiff sued out an execution directed to the sheriff of Cole county, by whom the Casualty Reciprocal Exchange, the plaintiff in error in this proceeding, was summoned as the garnishee of St. Louis-Wichita Motor Freight, Inc., one of the unappealing defendants in the original action.

The writ thus sued out was executed upon the Superintendent of the Insurance Department of the State of Missouri, and there is no question raised about the sufficiency of the several steps which were taken to bring, not only the property or debt, if any, but also the person of the garnishee, within the jurisdiction of the circuit court of the city of St. Louis for the purposes of the garnishment proceeding.

The res or debt as to which declaration of seizure was made in the garnishment proceeding was an alleged indebtedness of the garnishee to St. Louis-Wichita Motor Freight, Inc., the judgment debtor, under and by virtue of a policy of liability insurance theretofore issued by the former to the latter pursuant to the provisions of section 5273, Laws 1931, p. 313, Mo.St. Ann. § 5273, p. 6691.

It would appear that the judgment debttor, having been desirous of engaging in business as an intrastate motor carrier within this state, had made application to the public service commission for the issuance of a certificate of convenience and necessity by which it would be authorized to accept freight for transportation between points on its route, and in connection with its application had procured the policy in question from the garnishee so as to enable it to comply with section 5273, supra, which provides that "no certificate of convenience and necessity * * * shall be issued by the public service commission until and after such carrier shall have filed with, and same has been approved by the commission of this state, a liability insurance policy * * * which liability insurance shall bind the obligors thereunder to make compensation for injuries to persons * * * resulting from the negligent operation of such motor carrier."

Upon the filing of the officer's returns showing notice of garnishment and service of summons upon the garnishee, plaintiff exhibited written interrogatories concerning the property and credits attached in the hands of the garnishee, to which the garnishee in due time filed its answer under oath.

There was no denial of such answer by plaintiff, but instead, treating the answer as an admission on the part of the garnishee that it was indebted to the judgment debtor, plaintiff filed his motion for judgment on the pleadings, which motion was sustained by the court, and an interlocutory judgment thereupon entered in favor of plaintiff, and against the garnishee, for the sum of $2,786.05, which sum the court purported to find "from the pleadings" to be the measure of the garnishee's indebtedness to the judgment debtor.

Upon the garnishee's failure to discharge itself, final judgment was entered against it, and it is to review that judgment that writ of error has been issued out of this court upon the garnishee's petition.

Plaintiff still insists, just as he did when opposing the garnishee's petition for issuance of the writ, that writ of error will not lie to review a judgment rendered in a garnishment proceeding. Our order that the writ should issue was a disallowance of such contention, and our present reconsideration of the matter but reaffirms us in that viewpoint.

It is provided by section 1034, R.S. Mo.1929, Mo.St.Ann. § 1034, p. 1327, that writs of error shall issue of course, subject to the regulations imposed by law, upon any "final judgment or decision" of any circuit court. It follows, therefore, that the propriety of the issuance of a writ of error for the purpose of reviewing the judgment rendered in a garnishment proceeding must depend upon the question of whether such a judgment is a "final judgment" within the contemplation of the statute.

The Legislature itself would seem to have answered that question for us. Both in section 1402, R.S.Mo.1929, Mo.St. Ann. § 1402, p. 1619, and in section 1412, R.S.Mo.1929, Mo.St.Ann. § 1412, p. 1624, the ultimate judgment to be rendered in a garnishment proceeding is expressly denominated a "final judgment," which characterization is indeed very appropriately applied...