Gilbert v. Malan

• Decision Date: 11 January 1937
• Citation: 100 S.W.2d 606,231 Mo.App. 469
• Parties: D. J. GILBERT, RESPONDENT, v. C. C. MALAN, DEFENDANT, AND CENTRAL MUTUAL INSURANCE COMPANY, GARNISHEE, APPELLANT
• Court: Kansas Court of Appeals

100 S.W.2d 606

231 Mo.App. 469

D. J. GILBERT, RESPONDENT, v. C. C. MALAN, DEFENDANT, AND CENTRAL MUTUAL INSURANCE COMPANY, GARNISHEE, APPELLANT

Court of Appeals of Missouri, Kansas City

January 11, 1937

Appeal from Circuit Court of Lafayette County.--Hon. Charles Lyons Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

A Lamkin James for respondent.

Fred F Wesner and Horace F. Blackwell for appellant.

OPINION

REYNOLDS, J.

This is a proceeding in garnishment, arising in the Circuit Court of Saline County, which was regularly transferred to the Circuit Court of Lafayette County on a change of venue and finally heard and disposed of in that court.

It appears from the record that the defendant, C. C. Malan, during the month of September, 1933, was the owner of a certain Chevrolet truck, 1932 model, motor number 3353447, which he operated out of the town of Miami, Saline County, Missouri, where he lived; that the garnishee, the Central Mutual Insurance Company of Chicago (hereinafter referred to as the appellant), is a corporation duly organized and engaged in the insurance business and in issuing policies of insurance covering liability of the insureds named therein incurred in the operation of their motor cars on account of property damage to the property of others and bodily injury to the persons of others; that, on September 7, 1933, it issued its policy of insurance numbered A 34007 to defendant Malan in consideration of a premium paid or to be paid thereon, insuring the said defendant against liability for personal injuries sustained by others not in excess of $ 5000 for any one person injured and not in excess of $ 10,000 for all persons injured in any one accident and also against liability for damages to the property of others not exceeding $ 5000, while operating his said six cylinder Chevrolet truck, for one year from the date of issue; that, on March 26, 1934, plaintiff was the owner of a 1933 model, De Luxe Plymouth sedan, which he was operating on a public highway in Pettis County, Missouri; that, while he was so operating his said sedan on such highway and was riding therein, the defendant, Malan, was at the same time operating his said truck described in said policy of insurance so issued to him on the same highway with plaintiff and so operated the same as to cause it to run into and collide with plaintiff's said sedan, by reason whereof plaintiff received severe personal injuries and his sedan was broken and damaged; that, for the personal injuries and the damages to his sedan so occasioned him, he filed suit against defendant Malan in the Circuit Court of Saline County, Missouri, returnable to the September term, 1934, of said court; that defendant Malan filed an answer in said suit and, upon a trial had in said court of the issues raised in such suit, plaintiff on January 17, 1935, recovered judgment against defendant Malan in the sum of $ 2000 for his personal injuries and $ 200 for the damage to his sedan, which judgment thereafter in due time became final; and that no part of said judgment has been paid to plaintiff but the same remains in force and effect for the full amount thereof.

Due notice of the suit appears to have been given by defendant Malan to the appellant; and, at the same time, a request was made by defendant Malan of appellant to defend the suit; and a copy of the summons, together with a copy of the petition in said suit, was delivered to it by defendant Malan. Appellant responded to the notice thus given it and the request thus made of it by writing that the policy of insurance issued by it to him covering his truck in question had been cancelled on November 7, 1933, and was not in force at the time of the accident involving plaintiff in said cause and declined to defend the suit, further stating that notice that said policy of insurance would be cancelled on said date was forwarded by it to the defendant on November 2, 1933.

An execution was caused to be issued upon said judgment; and appellant was summoned thereunder as garnishee and required to answer interrogatories filed and exhibited to it as such garnishee by plaintiff in the Circuit Court of Saline County touching, among other things, the existence of the policy of insurance in question, its issuance and delivery to defendant Malan, its terms and conditions, and the indebtedness of appellant thereunder to defendant Malan.

In its answer to such interrogatories, appellant as garnishee denied that, at the time that it was summoned as garnishee or since such time or at the time of making such answer, it had in its possession, custody, or charge any goods, chattels, money, claims, or effects of defendant Malan; that, at any of such times, it was indebted to him or owed him any money; that it was bound in any contract or otherwise to pay defendant Malan any money not at such times due or afterward to become due; and that, on or about March 26, 1934, there was any insurance policy in force issued by it to defendant Malan or any contract or instrument in writing in force at such times whereby it agreed to reimburse defendant Malan on account of any judgment for damages for which he might be liable or on account of any property damage or personal injury arising out of the operation by him (the said Malan) of any truck or motor vehicle whatever.

Thereafter, in due time, plaintiff filed his denial to the answer of appellant as garnishee to the interrogatories exhibited, in which he set up the facts hereinbefore mentioned that, on or about March 26, 1934, he was the owner of a 1933 model De Luxe Plymouth sedan; that, on said date, while he was operating said sedan on the public highway in Pettis County, he was run into by defendant Malan with a six cylinder model Chevrolet truck, motor number 3353447, at the time being operated and owned by such defendant upon such highway and, by reason thereof, sustained personal injuries to himself and property damage to his said sedan, for which he thereafter filed suit for damages against defendant Malan in the Circuit Court of Saline County, Missouri, returnable to the September term, 1934, of said court; that defendant Malan filed answer to said petition; that, upon the trial of the issues thereby raised, had on January 17, 1935, at the January term, 1935, of the court, he recovered a judgment against defendant Malan in the sum of $ 2000 for his personal injuries and $ 200 for the property damage to his car; that no part of said judgment has been paid him; and that an execution had been issued thereon.

Plaintiff further set up in his denial the issuance and delivery of the policy of insurance in question, Number A 34007, by appellant on September 7, 1933, to defendant Malan upon his application to it therefor in consideration of premiums paid or to be paid it, insuring him for the period of one year from the date of its issuance against liability for personal injuries in an amount not exceeding $ 5000 for any person and not exceeding $ 10,000 for any number of persons in any one accident and also against liability for property damage not exceeding $ 5000 incurred while operating his six cylinder 1932 model Chevrolet truck, motor number 3353447.

Plaintiff in his said denial further set up that by the terms and provisions of said policy, appellant insured defendant against liability from loss by reason of damage to the property of others and personal injury to others in amounts not exceeding the amounts therein before stated; that said policy of insurance was in full force on March 26, 1934, and that, by reason of the premises, appellant became and is liable for the payment of the judgment obtained by plaintiff in the Circuit Court of Saline County, Missouri, as foresaid, against defendant Malan and denied that said appellant's answer to said interrogatories propounded to it was true and that, by reason of the premises and said policy of insurance, appellant became indebted to defendant Malan for the amount of said judgment in the sum of $ 2200, together with the costs of suit of plaintiff against defendant Malan, and prayed that the court require appellant to pay into court the sum of $ 2200, together with the costs, in behalf of defendant Malan and for the benefit of plaintiff.

Thereafter, in due time, the garnishee, appellant, filed in the Circuit Court of Lafayette County, where said cause had been transferred on change of venue, its reply to plaintiff's denial to its answer, in which it denied generally each and all of the allegations set forth in plaintiff's denial of its answer and denied all of the allegations in plaintiff's said denial and denied that it ever had any business relationship with defendant Malan, as a corporation, directly or by or through any authorized agent, in September, 1933, or at any other time mentioned in plaintiff's denial of appellant's answer.

In further reply to plaintiff's denial of its answer appellant as garnishee alleged that it did issue its said insurance policy No. A 34007, in which defendant Malan was the named insured, in consideration of the payment of the premium therefor, upon the delivery thereof, in the sum of $ 84 in cash, and delivered said policy to one W. A. Taylor, upon the request of the said Taylor who represented himself as the agent of defendant Malan; that neither the said Malan nor the said W. A. Taylor paid the premium thereon or any part thereof; that, on account of the nonpayment of said premium it did, on November 2, 1933, cancel said policy as of the date of its issuance, to-wit, September 7, 1933; that, on said date of November 2, 1933, it gave to defendant Malan five days written notice of said cancellation by letter deposited in the United States mail addressed to him at...