Glick v. Allstate Ins. Co., 25067

• Decision Date: 02 December 1968
• Docket Number: No. 25067,25067
• Citation: 435 S.W.2d 17
• Parties: Wallace GLICK, by his next friend Bessie McGinty, and Bessie McGinty, Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, a foreign insurance corporation, Skokie, Illinois, the Travelers Indemnity Company, a foreign insurance corporation, Hartford, Connecticut, and American Family Insurance Company, a foreign insurance corporation, Madison, Wisconsin, Defendants--Respondents.
• Court: Missouri Court of Appeals

Page 17

435 S.W.2d 17

Wallace GLICK, by his next friend Bessie McGinty, and Bessie McGinty, Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, a foreign insurance corporation Skokie, Illinois, the Travelers Indemnity Company, a foreign insurance corporation, Hartford, Connecticut, and American Family Insurance Company, a foreign insurance corporation Madison, Wisconsin, Defendants--Respondents.

No. 25067.

Kansas City Court of Appeals, Missouri.

Dec. 2, 1968.

Elwyn L. Cady, Jr., Kansas City, for appellants.

John R. Caslavka, Kansas City, for Allstate Ins. Co., Shughart, Thomson & Kilroy, Kansas City, of counsel.

Morris H. Kross, Rogers, Field & Gentry, Kansas City, for Travelers Indemnity Co.

Thomas A. Sweeny, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for American Family Ins. Co.

CROSS, Judge.

This is an appeal from a judgment of the Circuit Court of Clay County dismissing a petition for a declaratory judgment filed by plaintiffs-appellants. The appeal was originally directed to the Supreme Court. That court determined itself to be without jurisdiction and accordingly transferred the cause to this court.

Plaintiff-appellant Bessie McGinty is the widow of Marvin Glick, deceased, who is alleged to have died from injuries sustained in an automobile accident. Her present name is accounted for by the fact of her remarriage to one John McGinty since the death of Marvin Glick. Plaintiff-appellant Wallace Glick, a minor, is the surviving son of Marvin Glick, deceased, and Bessie McGinty. Two other minor sons of Marvin Glick and Bessie McGinty (brothers of Wallace Glick) are also deceased, allegedly as a result of the same accident. The present case grows out of a lawsuit previously prosecuted in Clay County by plaintiff Bessie McGinty as guardian and curator of plaintiff Wallace Glick to recover on his behalf damages for the wrongful death of his father, and to recover, on her own behalf damages for the wrongful death of her two minor sons. The action was instituted against multiple defendants. ¹

The above described wrongful death suit came on for hearing in the Circuit Court of Clay County on April 17th, 1967. Preliminarily plaintiffs filed a 'motion in limine' requesting the court to direct the defendants in that action to refrain from interrogating jury panel members on voir dire as to their acquaintance with Mrs. McGinty by referring to her by that name and thus disclose the fact of her remarriage. After an extended hearing and argument by counsel, the requested motion was overruled by the court. Thereafter plaintiffs orally moved for a continuance to enable Mrs. McGinty to file legal proceedings 'to get her named changed' (back to Glick, so as not to divulge the remarriage in trial of the case). The motion was overruled and plaintiffs voluntarily dismissed their lawsuit.

Thereafter, on April 25th, 1967, Mrs. McGinty instituted the present action in the Clay County Circuit Court. Seeking a declaratory judgment, she sued as plaintiff in her own behalf and as next friend of plaintiff Wallace Glick, her minor son. The suit is against the three insurance companies which had appeared and defended on behalf of the persons sued in the former damage suit. The defendants in that case are not joined with the insurance companies in this case.

The petition contains allegations of fact to the effect that in the previously pending action for wrongful death the parties duly appeared pursuant to call of the case for trial on April 17, 1967; that 'preliminarily to selection of the jury in said cause, plaintiffs presented to the Court their Motion in Limine, presenting their position concerning the proper method of keeping the issue of remarriage of the surviving widow and mother, Bessie McGinty, out of said case.'; that although the court properly ruled that 'remarriage of said widow and mother' was not an issue, the court 'would not sustain the portion of said Motion in Limine directed to the remarriage status, but would permit the above-named defendants to conduct a voir dire interrogation of the jury which would clearly reveal the marital status of the widow and mother herein.'; that after the trial court's adverse ruling on the motion plaintiff moved for and the court denied a continuance; and, that 'plaintiffs thereupon took a voluntary nonsuit in order to seek further legal relief before proceeding further with trial.' The prayer of the petition is for 'a declaration of the rights and status of the remarried widow and mother of decedents who has sought justice in the courts of Missouri under the statute upon the death of her husband and two minor children.'

The three defendants (insurance companies) filed separate motions to dismiss plaintiffs' petition for declaratory judgment on the ground that it failed to state a claim upon which relief can be granted. During argument on the motion and in response to direct interrogation by the court as to what specific relief plaintiffs were seeking by declaratory judgment, plaintiffs' counsel answered to the general effect that they wanted the court to decide whether, in the anticipated trial of the death actions, defending counsel would be permitted to inquire of the jury panel on voir dire examination, 'if you know her under her present name (McGinty) and thus disclose the fact of her remarriage.' On June 20th, 1967, the trial court susained defendants' motion to dismiss and 'ordered and adjudged * * * that this cause be, and the same hereby is dismissed.' This appeal by plaintiffs followed.

Defendants-respondents have filed a motion to dismiss this appeal supported by record proof that the plaintiffs have refiled their causes of action for alleged wrongful deaths (which previously pended in Clay County) in the Circuit Court of Jackson County. Dismissal of the appeal is contended for on the ground that the issues are moot because any question pertaining to voir dire examination of the jury is properly determinable by the court in which those refiled cases are now pending. In our discretion we deny the motion and proceed to determine the appeal issues presented.

Plaintiffs' brief contains only one point--a complaint that 'The court erred in dismissing appellants' petition since it did properly state a cause of action for declaratory judgment.' Argument on the point runs to less than one page and is to the effect that a jury is likly to reduce a death award to a widow if they know she has remarried; that 'judicial techniques to foreclose such disclosure are approved' (citing Speiser, Recovery for Wrongful Death, Sec. 6:12, pp. 485--487); that 'Relief before trial is essential * * * (so that) * * * no suspicions be aroused during voir dire examination'; that declaratory judgments have previously been utilized as practice 'guidelines' in personal injury cases defended by insurance companies (citing Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 125 A.L.R. 1149); and that it is appropriate in this case that a declaratory judgment issue to prevent disclosure to the jury of the widow's remarriage.

The fundamental, underlying requisite for the assumption of jurisdiction to render a declaratory judgment is the existence of an actual, justiciable controversy between the parties as to their respective legal rights and duties, admitting of specific relief by way of a judgment conclusive in character and determinative of the issue involved. 10A Mo. Digest, Declaratory Judgment, k No. 61. Our courts further say that a petition for declaratory judgment must present a real and substantial controversy admitting of specific relief through a decree of conclusive character as distinguished from a decree which is merely advisory as to the state of law upon purely hypothetical facts. M.F.A. Mutual Insurance Co. v. Hill, Mo.Sup., 320 S.W.2d 559, 10A Mo. Digest, Declaratory Judgment, k Nos. 66, 313. In the recent case of Spencer v. Village of DeKalb, Mo.Sup., 408 S.W.2d 78, the Supreme Court stated the following quoted essential requirements of a petition for declaratory judgment:

'Plaintiff's petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from a decree which is merely advisory as to the state of the law upon purely hypothetical facts. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Anderson, Declaratory Judgments, p. 27, 16 Am.Juris., Sec. 46. Actions are merely advisory when there is an insufficient interest in either plaintiff or defendant to justify judicial determination, i.e., where the judgment sought would not constitute a specific relief to one party or the other. They are merely advisory when the judgment would not settle actual rights. If actual rights cannot be settled the decree would be a pronouncement of only academic interest. Plaintiff must have a legal interest in the relief he seeks. The question is justiciable only where the judgment will declare a fixed legal right and accomplish a useful purpose. Plaintiff must present a state of facts from which he has present legal rights against those he names as defendants with respect to which he may be entitled to some consequential relief immediate or prospective. If it appears plaintiff can have no relief against defendant, defendant should not be forced into litigation which can have no possible final result in favor of plaintiff.'

And in Nations v. Ramsey, Mo.App., 387 S.W.2d 276, the court said:

'But we also understand that the declaratory judgment act, while it is to be interpreted liberally, is not a general panacea for all real and imaginary legal ills, nor is it a substitute for all existing remedies. It should be used with caution. And except in exceptional circumstances plainly appearing, it is not to be used and applied where an adequate remedy already exists. The petition must present a sufficiently complete state...