Gunning v. State Farm Mut. Auto. Ins. Co., 40365
| Citation | 598 S.W.2d 479 |
| Decision Date | 13 February 1980 |
| Docket Number | No. 40365,40365 |
| Parties | Anna Mae GUNNING, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al., Respondents. |
| Court | Court of Appeal of Missouri (US) |
Kurt D. Breeze, Pannell, Dodson & Robinson, Festus, for appellant.
Ben Ely, Jr., Kortenhof & Ely, Nicholas G. Gasaway and Mark T. Stoll, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, K. Steven Jones, St. Louis, Bruce H. Beckett, Columbia, for respondents.
Anna Mae Gunning, herein plaintiff, appeals from a summary judgment rendered against her in an action to recover $10,000.00 damages resulting from injuries sustained in an automobile collision.
On or about August 12, 1973, plaintiff was injured while a passenger in an automobile involved in a collision. The driver of the automobile in which she was riding was uninsured and as such, came within the terms of plaintiff's insurance policy purchased from State Farm Mutual Automobile Insurance Company (hereinafter State Farm). Pursuant to the terms of the policy State Farm entered into a contract with the plaintiff whereby State Farm promised to pay the defendant $10,000.00 for injuries sustained in the collision. In return for this commitment the plaintiff signed a release as to State Farm. On October 12, 1973, State Farm issued a draft payable to "William J. Gunning and Anna Mae Gunning, individually and as husband and wife." Mr. Gunning took possession of the check and deposited it for collection in a joint checking account belonging to plaintiff and her then husband in the Farmers Bank of Antonia (hereinafter Farmers Bank). Both Gunnings were authorized to write checks on that account and withdraw funds from it. The evidence indicates that Mr. Gunning applied $4,975.86 of these funds toward the payment of Mrs. Gunning's medical bills. In further disbursement of these funds Mr. Gunning paid himself $2,250.00 for acting as his wife's nurse during her recuperative period after the car accident. Mr. Gunning also gave his wife approximately $400.00 from this fund as living expenses. These amounts paid from the $10,000.00 draft issued by State Farm equal approximately $7,625.00. Also, Mrs. Gunning withdrew.$1000.00 from the joint savings account about the time the $10,000.00 settlement was made with State Farm. 1
On November 29, 1973 Mrs. Gunning filed her petition for divorce from Mr. Gunning. In her petition, plaintiff alleged that her husband, as defendant, "collected a sum of money from an insurance company based upon personal injuries sustained by plaintiff and has failed and refused to advise plaintiff of the amount recovered and/or its present whereabouts." She further stated in her affidavit in support of her request for maintenance that her husband had other means including $10,000.00 paid to him by State Farm Mutual Automobile Insurance Company.
At the divorce hearing, Mrs. Gunning testified on direct examination that as a result of negotiations with her husband she was willing to settle her support and maintenance claims for $3,500.00. When questioned by opposing counsel as to her understanding of the settlement she stated that she realized that she could not come into court again and ask for more money.
The court granted the divorce as well as maintenance in gross in the amount of $3,500.00 plus attorney's fees on November 17, 1975. The judgment was satisfied by Mr. Gunning on December 11, 1975.
On January 24, 1975, Mrs. Gunning filed suit against State Farm alleging a breach of their contract in that they agreed to pay her $10,000.00 and had not paid. State Farm's answer pleaded plaintiff's release as to State Farm and payment by State Farm to Mr. Gunning, plaintiff's husband at the time of the payment. On December 13, 1977, plaintiff filed her amended petition naming Farmers Bank and First National Bank and Trust Company of Columbia (herein First Bank) as codefendants with State Farm. Upon motions supported by affidavits the trial court granted summary judgment as to State Farm and Farmers Bank. Plaintiff filed a motion to expunge the record and reenter the judgment requesting that the court grant a summary judgment as to all defendants in order that there be a final and therefore appealable judgment....
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