General Exchange Ins. Corp. v. Young

• Citation: 212 S.W.2d 396,357 Mo. 1099
• Decision Date: 14 June 1948
• Docket Number: 40792
• Parties: General Exchange Insurance Corporation, a Corporation, v. Frank Young, Appellant
• Court: United States State Supreme Court of Missouri

212 S.W.2d 396

357 Mo. 1099

General Exchange Insurance Corporation, a Corporation, v. Frank Young, Appellant

No. 40792

Supreme Court of Missouri

June 14, 1948

Appeal from Lewis Circuit Court; Hon. Edward M. Jayne Judge.

Affirmed.

Harry Carstarphen and Frank B. Harvey for appellant.

(1) The petition fails to allege the substance or portion of any policy of insurance creating an obligation on plaintiff to pay Mrs. Swisher, hence, plaintiff is a mere volunteer. Aetna Life Ins. Co. v. Middleport, 124 U.S. 534, 8 S.Ct. 625; Demeter v. Wilcox, 115 Mo. 6, 22 S.W 613. (2) Nor may allegations of a reply substitute the required element. Subscribers at Casualty Reciprocal Exchange v. K.C. Pub. Serv. Co., 230 Mo.App. 468, 91 S.W.2d 227. (3) The plaintiff was bound by the judgment and settlement made by Ella Lucille Swisher, for there could be but one judgment on one tort claim. Coy v. St. Louis & S.F.R. Co., 186 Mo.App. 408, 172 S.W. 446; Subscribers at Casualty Reciprocal Exchange v. K.C Public Serv. Co., 230 Mo.App. 468, 91 S.W.2d 227. (4) A claim may not be split. Love v. Fairfield, 13 Mo. 300; Subscribers at Casualty Reciprocal Exchange v. K.C. Pub. Serv. Co., 230 Mo.App. 468, 91 S.W.2d 227; Burnett v. Crandall, 63 Mo. 410. (5) The original claimant may settle the whole claim. Burnett v. Crandall, 63 Mo. 410. (6) Notice is not a bar to a settlement. Subscribers at Casualty Reciprocal Exchange v. K.C. Pub. Serv. Co., 230 Mo.App. 468, 91 S.W.2d 227; Fourth Natl. Bank of St. Louis v. Noonan, 88 Mo. 372; Burnett v. Crandall, 63 Mo. 410. (7) Action here could not be brought in the name of plaintiff under the facts. Swift v. Wabash Railroad Co., 149 Mo.App. 526, 131 S.W. 124; Chamberlain v. Mo.-Ark. Coach Lines, 189 S.W.2d 538; Cable v. St. Louis Marine Ry. & Dock Co., 21 Mo. 123; Subscribers at Casualty Reciprocal Exchange v. K.C. Pub. Serv. Co., 230 Mo.App. 468, 91 S.W.2d 227. (8) No consent was given here to the splitting of the cause of action. Swift v. Wabash Railroad Co., 149 Mo.App. 526, 131 S.W. 124. (9) No conventional subrogation exists as no policy or language of contract present in evidence to rest it on. Alexander v. Grand Avenue Ry. Co., 54 Mo.App. 66; McLeland v. St. Louis Transit Co., 105 Mo.App. 473, 80 S.W. 30. (10) For this same reason plaintiff's Exhibit I was not competent evidence and no lawful assignment existed. Home Ins. Co. of N.Y. v. Smith, 235 Mo.App. 552, 140 S.W.2d 64; Loomis v. Robinson, 76 Mo. 488. (11) It was thus error for the court to entertain subrogation in any form. Ella Lucille Swisher became a trustee for plaintiff if by any theory of law plaintiff had anything coming. Home Ins. Co. of N.Y. v. Smith, 235 Mo.App. 552, 140 S.W.2d 64; Swift v. Wabash Railroad Co., 149 Mo.App. 526, 131 S.W. 124. (12) There is no substantial evidence to sustain the verdict. Trent v. Barber, N.O.R., 56 S.W.2d 151; Mason v. Down Town Garage, 227 Mo.App. 297, 53 S.W.2d 409. (13) The court erred in failing to direct a verdict for defendant on the ground that as a matter of law the plaintiff's averred insured was guilty of contributory negligence. Roenfeldt v. St. Louis Suburban Ry. Co., 180 Mo. 554, 79 S.W. 706; Wheat v. St. Louis, 179 Mo. 572, 78 S.W. 790; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872. (14) The giving of Instruction 1 offered by plaintiff was error. There is not evidence to sustain the instruction as submitted and given, and there is error of law in the instruction; it is broader than the pleading and the evidence and is prejudicial. Schumacher v. Kansas City Breweries Co., 247 Mo. 141, 152 S.W. 13; State ex rel. Goessling v. Daues, 314 Mo. 282, 284 S.W. 463; Horvath v. Chestnut Street Realty Co., 144 S.W.2d 165. (15) The giving of Instruction 3 offered by defendant was error. The measure of damages as defined is error. There must be evidence of the extent of damages. Muckel v. Rose, 15 Mo.App. 393; Lee v. Armour Bldg. Co., 18 S.W.2d 702; Newton Burial Park v. Davis, 78 S.W.2d 150. (16) The courts have laid down a standard for measure of damages to personal property and require that it be met. Stevenson v. A.B.C. Fireproof Warehouse Co., 6 S.W.2d 676; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Wheeler v. Breeding, 109 S.W.2d 1237; Pannell v. Allen, 160 Mo.App. 714, 142 S.W. 482.

H. S. Rouse, Walter M. Hilbert, and J. Andy Zenge, Jr., for respondent.

(1) The trial court correctly ruled that a cause of action was stated by respondent's petition. (2) The court correctly overruled appellant's contention that respondent's claim was res adjudicata. (3) There was no splitting of a cause of action in the case at bar but even if so the appellant by its conduct consented to such a splitting of the cause of action.

OPINION

Clark, J.

Respondent insurance company issued a policy to a Mrs. Swisher insuring her against damage to her automobile by collision. The automobile was damaged when it collided with an abutment to a culvert. The repair bill was $ 367.00, of which respondent paid $ 342.00 and Mrs. Swisher paid $ 25.00. Mrs. Swisher executed an instrument purporting to assign to respondent any claim she might have against any person for causing such damage. Respondent sued appellant Young, alleging that the damages were caused by his negligence, and recovered a judgment for the amount respondent had paid, $ 342.00. On appeal the St. Louis Court of Appeals affirmed the judgment, but transferred the cause to this court because it deemed its opinion in conflict with the decision of the Kansas City Court of Appeals in Subscribers, etc., v. K.C. Pub. Serv. Co., 230 Mo.App. 468, 91 S.W.2d 227.

In November, 1941, respondent notified Young and his insurance carrier that respondent had paid $ 342.00 on the repair bill, had been subrogated to Mrs. Swisher's rights to collect damages to her car and claimed reimbursement therefor.

Respondent filed the instant suit December 5, 1942. In May, 1942, Mrs. Swisher sued Young for $ 5,000.00 alleging that due to his negligence she had been permanently injured and caused to expend large sums for hospitalization and doctor bills. On July 12, 1943, Mrs. Swisher dismissed her suit with prejudice and executed a release of all claims for damages to person or property in consideration of the payment to her of $ 500.00.

A more complete statement of the facts is fairly set forth in the opinion of the Court of Appeals and all of appellant's assignments of error are there fully discussed and we think correctly decided.

Briefly we list appellant's contentions as follows:

1. The petition fails to state a claim upon which relief can be granted.

2. The judgment obtained, and settlement made, by Mrs. Swisher are res judicata as to respondent's claim; for the reason that the cause of action cannot be split and there can be but one recovery on a tort claim.

3. No proof that respondent was subrogated to any part of Mrs. Swisher's claim.

4. Insufficiency of the evidence to support the verdict.

5. Mrs. Swisher, through her driver, was guilty of negligence as a matter of law.

6. Error in giving instructions one and three at respondent's request.

The first assignment attacks the petition for failure to set out the insurance policy or at least, "the obligation clause." The petition alleged the issuance of the policy; a general statement of its terms; damage to the automobile by the negligence of defendant; the amount of the repair bill paid by respondent and subrogation to the rights of the insured. We hold that the petition stated a valid claim.

Appellant's assignment three, as to failure to prove subrogation, seems to rest upon the argument that it was necessary to introduce the policy in evidence. Respondent, without objection, proved by Mrs. Swisher that she had procured the policy and that it obligated respondent to pay the damages less $ 25.00; also that respondent paid the proportion of the damage called for and that she assigned to respondent her right to recover from any person whose negligence may have caused the damages. We hold this proof sufficient.

Appellant's fourth and fifth assignments relate to the sufficiency of the evidence to prove appellant's negligence. Also appellant claims that the evidence proves that the collision was due to the negligence of the driver of Mrs. Swisher's car, she being in the car but not driving. Respondent's proof was to the effect that appellant, without warning, backed his automobile out of a driveway onto the highway causing the Swisher car to swerve off the road and its driver to lose control and strike the culvert. Appellant argues that, as the Swisher car was a block away and approaching at thirty-five or forty miles per hour when it is claimed he obstructed the road, the driver of the Swisher car had ample time to avoid the collision. But the evidence shows that rain had been falling, the pavement was wet, the shoulder muddy and the culvert abutment difficult to see. Under all the conditions shown by the evidence the questions of negligence of appellant or contributory negligence of the driver of the Swisher car were for the jury. Besides, appellant having proved in the instant case that he had settled Mrs. Swisher's suit is not in good position to dispute his liability to her.

Appellant complains that instruction number one, which authorized a finding for respondent if defendant "could have stopped his automobile, or slackened the speed thereof, or turned or swerved the same . . ." and thus avoided the collision, was not in conformity to the petition. True, the petition alleged general negligence and the instruction submitted specific negligence, but the instruction was supported by the evidence and was not error. [Bergfeld v. K.C. Rys., 285 Mo. 654, 227 S.W. 106.]

Instruction number...