Galemore v. Haley

Decision Date17 September 1971
Docket NumberNo. 9034,9034
Citation471 S.W.2d 518
PartiesJoe GALEMORE and Sammy Babb, Plaintiffs-Appellants, v. John HALEY and State Farm Mutual Automobile Insurance Company, a corporation, Defendants-Respondents.
CourtMissouri Court of Appeals

Manuel Drumm, Sikeston, for plaintiffs-appellants.

Jackson, Thomasson, Dickerson & Gilbert, Donald L. Dickerson, Cape Girardeau, for defendant-respondent, State Farm Mutual Automobile Ins. Co.

STONE, Judge.

On September 1, 1965, a 1963 Ford automobile owned by Joe Galemore and 'then occupied' by Sammy Babb was involved in a vehicular collision with a 1964 Pontiac Tempest sport coupe owned by John Haley and Virginia Haley, husband and wife, and then being driven by John. (All emphasis herein is ours.) Ensuing litigation resulted in entry of two judgments against John Haley in the Circuit Court of Mississippi County, Missouri, on October 13, 1967, to wit, one judgment for $1,239.54 in favor of Joe Galemore and another for $5,000 in favor of Sammy Babb. On May 21, 1968, Galemore and Babb as plaintiffs instituted the case at bar against John Haley and State Farm Mutual Automobile Insurance Company (State Farm) as defendants 'on the theory that John Haley had a valid liability insurance policy with State Farm in force on the date of the . . . collision (September 1, 1965)' and that, since plaintiffs' judgments against defendant Haley had not been satisfied, they were entitled to proceed in equity against Haley and State Farm 'to reach and apply the insurance money to the satisfaction of the judgment(s).' Section 379.200. 1 At the conclusion of an extended trial, the court took the case under advisement and in due time filed written findings of fact and conclusions of law, as counsel had requested before submission (Rule 73.01(b); § 510.310(2)), concluded that 'plaintiffs have failed to prove that defendant State Farm . . . had a policy of insurance covering John Haley or his 1964 Pontiac on September 1, 1965,' and accordingly entered judgment to that effect. Plaintiffs appeal.

The only State Farm policy on the Haley Pontiac (issued under circumstances hereinafter detailed) was Policy No. 1286 077--B27--25 (the policy) which by its terms afforded $10M/$20M/$10M liability, $1,000 medical payments, comprehensive, and $50 deductible collision coverages to 'Haley, Virginia & John,' the named insureds, for a six-month 'policy period' from February 27 to August 27, 1965. Plaintiffs' theory of the case is that 'both State Farm and the Haleys agreed to a different (six-month) policy period (i.e., from March 9 to September 9, 1965) than that expressed in the policy'; that 'there should be a reformation of the policy contract' in that respect; and that, as so reformed, the policy afforded coverage for the accident of September 1, 1965, and 'insurance money' (§ 379.200) for satisfaction of plaintiffs' judgments against John Haley.

We observe preliminarily that, although reformation of the policy was an indispensable prerequisite to plaintiffs reaching and applying 'insurance money' to be provided by that policy, their theory of the case was neither articulated nor suggested in their petition, and reformation of the policy was neither mentioned in the body of the petition nor sought in the prayer thereof. Of course, where a claim is one cognizable only after another claim has been prosecuted to a successful conclusion, the two claims may be joined in a single action (Rule 55.08; § 509.070), but that does not license a plaintiff to wholly ignore the prerequisite claim in his pleadings. The claim for reformation of the policy should have been pleaded in the first count of plaintiffs' petition followed by the two counts seeking 'insurance money' which would become available only upon reformation of the policy. See Binswanger v. Employers' Liability Assur. Corp., 224 Mo.App. 1025, 1027, 28 S.W.2d 448, 449; Steinberg v. Phoenix Ins. Co. of Hartford, Conn., 49 Mo.App. 255, 257 (cited in instant plaintiffs' brief). However, since all parties proceeded to and through trial without objection as if the issues had been raised and pleaded properly, we likewise treat them in all respects as though they had been. Rule 55.54; § 509.500; Anderson v. Dyer, Mo.App., 456 S.W.2d 808, 810(1); Greene v. Morse, Mo.App., 375 S.W.2d 411, 418(11), and cases there cited in note 16.

During the period this dispute was in incubation, John Haley, then 45 years of age who was a long-distance truck driver for various employers, and Virginia Haley, his wife, then 39 years of age who worked in a shoe factory at Charleston, resided in the village of Anniston which, as we know judicially, had a population of 307 at the time of the 1960 United States Census (Varble v. Whitecotton, 354 Mo. (banc) 570, 575, 190 S.W.2d 244, 246(4); State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, Mo.App., 424 S.W.2d 73, 79(11)) and was located approximately eight miles south of Charleston, the county seat of Mississippi County, and six miles northeast of East Prairie, also in that county. Klotsch v. P. F. Collier & Son Corp., 349 Mo. (banc) 40, 46, 159 S.W.2d 589, 592(1); Hood v. M.F.A. Mutual Ins. Co., Mo.App., 379 S.W.2d 806, 810(4).

The Haleys, then driving a 1957 Oldsmobile, shopped for another automobile during February 1965. After 'going in and out' of Pope Motors, the Pontiac-Oldsmobile agency in East Prairie, and dickering with William C. Pope, the owner thereof for 'about a week,' the Haleys during the afternoon of February 27, 1965, purchased the 1964 Pontiac Tempest sport coupe subsequently involved in the collision of September 1, 1965. Upon trial, testimony as to the purchase of that automobile and the procurement of insurance coverage thereon was given by three witnesses, namely, (1) Mrs. Virginia Haley, (2) William C. Pope, for 23 years 'the owner of Pope Motors,' and (3) Mrs. Frances DeField, the widow of Bruce DeField who was the State Farm agent at Charleston in 1965 but had died prior to trial. John Haley, who (so his wife said) 'purchased the car' and 'got the car financed,' did not appear as a witness.

The 1964 Pontiac was purchased and 'financed through GMAC' in this manner, i.e., the Haleys traded in their 1957 Oldsmobile, paid $250 in cash, and executed a 'Retail Instalment Contract (Chattel Mortgage)' securing payment of the 'Time Balance' of $2,001.90, which Pope Motors sold and assigned to GMAC. Witness Pope testified that 'when we sell a car . . . one of the very first things that we try to determine is where the insurance is going to be furnished, either with the finance company or outside insurance company.' If by an 'outside' company, 'quite frequently we contact the agent . . . right then before the contract is completed'--'the car has to be insured before it leaves the premises.' Furthermore, Pope confirmed the fact that, with respect to any automobile financed through GMAC, it was 'a requirement' of his 'working arranagement with GMAC' that insurance coverage with any 'outside' company 'had to be verified by (him) before the car could leave the lot.' So, in the transaction under consideration, 'I (Pope) asked Mr. and Mrs. Haley who they had their insurance with, and they informed me that it had been dropped on the car that they were trading in (the 1957 Oldsmobile) because it (the car) was paid out . . . but they wanted insurance from the same company they had (it) with before, State Farm Mutual,' and that they 'previously had (this) insurance with' Bruce DeField, the State Farm agent at Charleston. Accordingly, Pope telephoned DeField 'in their (Haleys') presence.'

In concluding his testimonial account of the conversation between DeField and himself, Pope said 'they (the Haleys) had made arrangements to insure this particular car (the 1964 Pontiac) at that particular date (February 27, 1965).' Pope's entire account of this conversation, including the quoted statement, was stricken on objection of plaintiffs' counsel 'because of the dead man's statute.' That statute, Section 491.010, is a qualifying enactment in that it removes the common-law disqualification of witnesses by reason of interest and is a disqualifying enactment only in the instances and circumstances therein stated. Fellows v. Farmer, Mo.App., 379 S.W.2d 842, 849(10). See Wilcox v. Swenson, Mo., 324 S.W.2d 664, 667(1); Freeman v. Berberich, 332 Mo. 831, 842--845, 60 S.W.2d 393, 398--400. In an action such as that at bar, involving disqualification vel non under the first or 'transactions' proviso of § 491.010 (Fellows v. Farmer, supra, 379 S.W.2d at 849), 'to be rendered incompetent, the witness must be both interested and be a party to the contract or cause of action. . . .' Ham & Ham Lead & Zinc Inv. Co. v. Catherine Lead Co., 251 Mo. 721, 741, 158 S.W. 369, 375(4); City of Puxico v. Harbin, Mo., 252 S.W. 393, 394(3). See Bernblum v. Travelers Ins. Co. of Hartford, Conn., 340 Mo. (banc) 1217, 1225--1227, 105 S.W.2d 941, 944--945(8); McCutchan v. Kansas City Life Ins. Co., Mo.App., 122 S.W.2d 59, 70(11, 12). Pope was not 'rendered incompetent' by § 491.010, and his testimonial account of his conversation with DeField was not inadmissible for the sole reason assigned by plaintiffs' counsel (i.e., 'because of the dead man's statute') and should not have been stricken. However, that testimony was not considered by the trial court, and we need not and do not in any wise rest our appellate determination upon it.

Mrs. Frances DeField was a part-time office assistant, 'mainly in the afternoons,' for her husband, Bruce DeField, the State Farm agent at Charleston. She 'answered the telephone . . . took payments . . . (and) did all kinds of clerical work' but was never an agent for State Farm. On February 27, 1965, she took a telephone call from Pope Motors but immediately referred it to her husband. While talking on this call, he was writing at his desk. Mrs. DeField was 'sure' he then obtained the detailed...

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