Gossett v. Larson, 54894
| Decision Date | 14 September 1970 |
| Docket Number | No. 54894,No. 2,54894,2 |
| Citation | 457 S.W.2d 709 |
| Parties | Carl R. GOSSETT and Bernadette Gossett, Appellants, v. Northrup P. LARSON, Sr. and Olive Larson, Husband and Wife, and Northrup P. Larson, Jr. and Chester Burrus, Administrator of the Estate of John Burrus, Deceased, Defendants. and M.F.A. Mutual Insurance Company, Respondent |
| Court | Missouri Supreme Court |
James E. Woodfill, Nevada, Malcolm L. Robertson, Blanchard, Van Fleet & Robertson, Joplin, for appellants.
Duke W. Ponick, Jr., and Max W. Foust of Morris, Foust, Moudy & Beckett, Kansas City, for respondent-garnishee M.F.A. Insurance Co.
This is a garnishment proceeding wherein plaintiffs seek to recover from M.F.A. Mutual Insurance Company Twenty Thousand Dollars ($20,000.00) on judgment obtained by the plaintiffs against Northrup Larson, Jr. as the result of an automobile collision.
The trial judge rendered judgment in favor of the garnishee M.F.A. Mutual Insurance Company and from this judgment, the plaintiffs have appealed.
The cause was submitted to the Court upon a stipulation of facts and involved only an issue of law.
The stipulated facts are as follows:
At the time of the collision Northrup P. Larson, Jr. was driving a 1954 Ford automobile owned by his brother, James Larson. N. P. Larson, Sr. and his wife, Olive, parents of James and N. P. Larson, Jr. were riding in said automobile.
The 1954 Ford automobile was being used to transport all of the Larsons to the residence of a daughter of N. P. Larson, Sr. and Olive Larson.
On June 11, 1960, at the time of the collision, Carl R. Gossett, Bernadette Gossett and their minor son, Bryan Gossett, were riding as passengers in an automobile operated by John Burrus when it collided with the automobile operated by Northrup P. Larson, Jr.
The collision resulted in the death of Bryan Gossett and injured Carl and Bernadette Gossett.
Carl and Bernadette Gossett brought suit against Northrup P. Larson, Sr., Olive Larson, Northrup P. Larson, Jr. and Chester Burrus, administrator of the estate of John Burrus, deceased, to recover damages for the wrongful death of Bryan Gossett and the bodily injuries of Carl and Bernadette Gossett alleged to have been caused by the negligence N. P. Larson, Jr. in the operation of the above-described 1954 Ford automobile which said negligence was allegedly imputed to N. P. Larson, Sr. and his wife, Olive, and the negligence of John Burrus in the operation of a 1952 Chevrolet automobile.
On June 15, 1965, after a jury trial, the plaintiffs obtained the following judgments against N. P. Larson, Jr. only:
(A) Judgment for Carl R. Gossett and Bernadette Gossett in the amount of Ten Thousand Dollars ($10,000.00) for the wrongful death of Bryan Gossett.
(B) Judgment for Carl R. Gossett in the amount of Eighteen Thousand Dollars ($18,000.00) for his bodily injuries.
(C) Judgment for Bernadette Gossett in the amount of Two Thousand Dollars ($2,000.00) for her bodily injuries.
On June 11, 1960, at the time of the collision involved here, a policy of automobile liability insurance issued by garnishee M.F.A. Mutual Insurance Company to N. P. Larson, a/k/a N. P. Larson, Sr. with bodily injury liability limits of Ten Thousand Dollars ($10,000.00) for each person and Twenty Thousand Dollars ($20,000.00) for each accident was in full force and effect.
N. P. Larson, Sr. owned a 1958 Chevrolet automobile which was the 'owned' automobile in the aforesaid policy of insurance.
At the time of the collision neither James Larson nor N. P. Larson, Jr. were members of the household of N. P. Larson, Sr.
At the time of the accident the 1954 Ford automobile operated by N. P. Larson, Jr. was not being used as a temporary substitute for the 1958 Chevrolet automobile described in the insurance policy issued by granishee; nor was the Ford owned by nor furnished for regular use to N. P. Larson, Sr. or his spouse or any member of his household; nor was it being used in any business or occupation of N. P. Larson, Sr. or his wife; nor was it owned by N. P. Larson, Jr.; and N. P. Larson, Jr. was not hiring the 1954 Ford automobile.
Plaintiffs in this appeal do not contend that N. P. Larson, Jr. was acting as the agent, servant or employee of N. P. Larson, Sr., nor that there was joint control of the automobile, but urge that garnishee's liability to plaintiffs rests upon the wording of its policy of automobile liability insurance as it would appear to a policyholder and not upon a theory of imputed negligence.
The specific policy provisions under which the plaintiffs are seeking to recover in this garnishment proceedings are as follows:
Except where stated to the contrary, it is agreed:
(4) 'Non-owned automobile' means any automobile, other than (a) the owned automobile, (b) a substitute automobile, or (c) an automobile owned by or furnished for regular use to the named insured or spouse or a member of his household.
(6) 'Bodily injury' means bodily injury, sickness or disease and includes death resulting therefrom at any time.
II--Automobile Liability Insurance.
1. Coverage A--Bodily Injury Liability--MFA Mutual will pay for the insured all damages which the insured shall become legally obligated to pay because of bodily injury sustained by any person, caused by accident and arising out of the ownership, maintenance, or use, including loading and unloading, of the owned automobile, a substitute automobile or a non-owned automobile.
6. Definition of Insured--With respect to the insurance afforded under Coverages A and B, the unqualified word 'insured' includes the named insured, and if an individual, his spouse, and:
(a) With respect to the owned automobile or a substitute automobile, any person or organization using it or legally responsible for its use, provided the actual use of the automobile is by the named insured or spouse, or with permission of either; and
(b) With respect to any non-owned automobile, any other person or organization, not owning or hiring it, but legally responsible for its actual use by the named insured or spouse.
8. Exclusions--Coverages. Coverages A and B do not apply to:
(h) A non-owned automobile while used (1) in the automobile business...
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