Giokaris v. Kincaid

• Decision Date: 11 January 1960
• Docket Number: No. 47282,No. 2,47282,2
• Citation: Giokaris v. Kincaid, 331 S.W.2d 633, 86 A.L.R.2d 925 (Mo. 1960)
• Parties: George GIOKARIS, Respondent, v. Michael E. KINCAID, Defendant, State Farm Mutual Automobile Insurance Company, a Corporation (Garnishee), Appellant
• Court: Missouri Supreme Court

Page 633

331 S.W.2d 633

86 A.L.R.2d 925

George GIOKARIS, Respondent, v. Michael E. KINCAID, Defendant State Farm Mutual Automobile Insurance Company, a Corporation (Garnishee), Appellant.

No. 47282.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1960.

Opinion Modified on Court's Own Motion and Motion for

Rehearing or to Transfer to Court en Banc Denied

Feb. 8, 1960.

Thos. E. Deacy and Deacy & Deacy, Kansas City, for appellant.

Charno and Charno, George H. Charno, Jr., James P. Jouras, Kansas City, for respondent.

BOHLING, Commissioner.

This is a garnishment proceeding in aid of an execution issued upon a judgment for $17,500 for personal injuries sustained on January 5, 1956, by George Giokaris, a pedestrian, in Kansas City when struck by a 1948 Chrysler sedan automobile operated by Michael E. Kincaid, a minor, the original defendant, but owned by his grandmother Mrs. Emma Hutchinson, and an allowance of $500 to Keith Martin, guardian ad litem for said defendant. Judgment in this garnishment proceeding on a trial without a jury was entered for $17,500 in favor of the judgment creditor and for $500 in favor of the guardian ad litem and against State Farm Mutual Automobile Insurance Company, a corporation, of Bloomington, Illinois, the garnishee. The garnishee has appealed.

The main controverted issues turn on whether garnishee is liable under the insuring agreements covering the 'Use of Other Automobiles' in two of its liability policies, next mentioned, in force and effect at the time of plaintiff's injury.

Garnishee's policy No. 368 139-B29-16 was issued to Michael E. Kincaid, the insured, on a 1948 Plymouth convertible coupe.

Garnishee's policy No. 331 272-B20-16 was issued to Don C. Kincaid and Virginia L. Kincaid, or either of them, the insureds, on a 1955 Chevrolet 2-door automobile owned by said Don C. and Virginia L. Kincaid, the parents of Michael. There was attached to this policy an endorsement providing that Insuring Agreement No. V thereof should apply to Michael E. Kincaid, subject to all the provisions of said policy.

The liability in each policy for bodily injury (Coverage A) sustained by one person in any one accident was not to exceed $10,000.

Mrs. Emma Hutchinson, Michael's grandmother, had permitted the liability policy on her 1948, Chrysler sedan to lapse eight days prior to plaintiff's injury. At the time of plaintiff's injury she was staying at the Kincaid home. Michael's Plymouth was not in operating condition January 5, 1956. He asked his mother's opinion about using the Chrysler and either he or his mother obtained permission from his grandmother for him to use it to go to school that morning. His grandmother had given his mother one set of the keys, but he was given his grandmother's keys. This was the first time he drove the Chrysler after his grandmother came to the Kincaid home. Plaintiff was injured while Michael was on his way home after school. The Chevrolet was used by Mr. Kincaid in going to and from work and was being so used at the time of plaintiff's injury. Additional facts will be developed in the course of the opinion.

Garnishee's policy on Michael's Plymouth automobile, so far as material to the principal issues, provided:

'IV. Use of Other Automobiles. If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns an automobile covered by this policy and classified as 'pleasure and business,' such insurance as is afforded by this policy under coverages A, B, C, F, G or H with respect to said automobile applies to any other automobile subject to the following provisions: * * *

'(c) Insuring Agreement IV does not apply: (1) to any automobile owned by, registered in the name of, hired as a part of a frequent use of hired automobiles by, or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse; * * *.'

The like provisions of garnishee's policy issued on Mr. and Mrs. Kincaid's Chevrolet automobile provided:

'V. Use of Other Automobiles. If the named insured is an individual who owns the automobile classified as 'pleasure and business' or husband and wife either or both of whom own said automobile, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to said automobile applies with respect to any other automobile, subject to the following provisions: * * *

'(b) Insuring Agreement V does not apply: (1) to any automobile owned by, registered in the name of, hired as part of a frequent use of hired automobiles by, or furnished for regular use to the named insured or a member of his household other than a private chauffeur or domestic servant of the named insured or spouse; * * *.'

We do not set out a stipulation filed by the parties as we develop the material facts therein in the course of the opinion.

Appellate courts review cases tried upon the facts without a jury as in suits of an equitable nature. Section 510.310, subd. 4, RSMo 1949, V.A.M.S. This case was submitted to the court on depositions and exhibits mentioned in the stipulation. The deference usually accorded the determination of a factual issue by a trial court because of its better position to judge of the credibility of witnesses appearing before it is not applicable to cases submitted upon depositions and exhibits. Pitts v. Garner, Mo., 321 S.W.2d 509, 514; Lukas v. Hays, Mo., 283 S.W.2d 561, 565.

The garnishee contends that plaintiff had the burden to establish coverage and every fact essential to establish the liability of the garnishee, quoting from Mistele v. Ogle, Mo., 293 S.W.2d 330, 332. We said in Kelso v. Kelso, Mo., 306 S.W.2d 534, 536, that 'where garnishee seeks to escape coverage solely because of policy exclusions, the burden was upon it to prove facts which would make those provisions applicable.' The garnishee does not undertake to show why the holding in the Kelso case is not applicable to its defense based upon exclusionary provisions in its policies.

The trial court followed Pray v. Leibfarth, D.C., 106 F.Supp. 613, and the same case on appeal, Travelers Indemnity Co. v. Pray, 6 Cir., 204 F.2d 821, mentioned hereinafter, and held garnishee's polices ambiguous. The court also found, with respect to facts in controversy, that Mrs. Hutchinson was residing temporarily in the home of her daughter; that she was not a member of the same household as Michael within the meaning to the insuring agreements of said policies, and that said Chrysler automobile was not furnished for regular use to her daughter or to her grandson Michael.

Briefly stated the garnishee contends the trial court erred because the provisions of its insuring agreements (p IV, (c)(1) of the policy on the Plymouth, and p V, (b)(1) of the policy on the Chevrolet, quoted supra) were clear and unambiguous; and, since under all the evidence Michael, his mother and his grandomother were all members of the same household within said provisions of said policies, there was no coverage because the Chrysler automobile operated by Michael at the time of plaintiff's injury was owned by his grandomother, a member of the same household, and, further, was furnished by his grandomother for regular use to his mother, a member of the same household.

We think there is no sufficient difference under the facts of record in the wording of the provisions involved in the two policies as to change the result upon a consideration of the provisions in one of the policies. The briefs proceed on this theory. We consider the provisions of the policy on the Plymouth.

I. Are the policy provisions involved ambiguous?

We have said the rules for construing insurance policies 'are well settled. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, in so far as open to different constructions, that most favorable to the insured must be adopted. * * * However, * * * the rule 'does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.'' Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99, 101[4, 5], 57 A.L.R. 615 (omitting citations). Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 222 S.W.2d 76, after quoting (78) the foregoing from the Wendorff case, states (80): 'Where possible, it is our duty to give every clause of the policy some meaning.' These cases involved policy provisions excepting liability. See Davis v. Mutual Life Ins. Co., 234 Mo.App. 748, 119 S.W.2d 488, 493, quoting Williams v. Union Central Life Ins. Co., 291 U.S. 170, 180, 54 S.Ct. 348, 78 L.Ed. 711, 92 A.L.R. 693, 700.

Aler v. Travelers Indemnity Co., D.C.Md.1950, 92 F.Supp. 620, 622, was an early declaratory judgment action involving provisions of a policy extending and limiting, by exclusionary provisions, the insured's coverage on his Mercury automobile in his use of 'any other automobile, subject to the following provisions * * * (b) This insuring agreement does not apply: (1) to any automobile owned by, hired as a part of a frequent use of hired automobiles by, or furnished for regular use to the named insured or a member of his household other than a private chauffeur or domestic servant of the named insured or spouse'. The insured was driving his mother-in-law's Plymouth automobile at the time of the accident. The mother-in-law had been a member of the insured's household for a year or more, paying no rent or board, and at the time of the accident was ill and confined to her bed. The insured, his wife and his son had been using both cars when needed. The court, after analyzing the issues involved in an opinion that has become a...