Haines v. Harrison

• Decision Date: 27 May 1948
• Docket Number: 40484
• Citation: 211 S.W.2d 489,357 Mo. 956
• Parties: Henry Haines, Appellant, v. Ben E. Harrison, Administrator of the Estate of Gerald Thomas Harrison, Deceased, and the Indemnity Insurance Company of North America
• Court: Missouri Supreme Court

211 S.W.2d 489

357 Mo. 956

Henry Haines, Appellant, v. Ben E. Harrison, Administrator of the Estate of Gerald Thomas Harrison, Deceased, and the Indemnity Insurance Company of North America

No. 40484

Supreme Court of Missouri

May 27, 1948

Appeal from Newton Circuit Court.

Affirmed.

James M. Tatum and Ruark & Ruark for appellant.

(1) The contract is one of liability as distinguished from indemnity despite the no-action clause. Brucker v. Georgia Casualty Co., 32 S.W.2d 1088; Graff v. Continental Auto Ins., 35 S.W.2d 926; Kurre v. American Indemnity Co., 17 S.W.2d 685. (2) And liability to the beneficiaries arose at the time of the occurrence of the injury. Pennsylvania Cas. Co. v. Phoenix, 139 F.2d 823; Ocean Acc. & Guar. Corp., Ltd., v. Southwestern Bell Tel. Co., 100 F.2d 441; Hocden v. Allstate Ins Co., 147 S.W.2d 182. (3) The injured party (plaintiff) was one of the beneficiaries of the insurance contract. 8 Appleman, Ins. Law and Practice, sec. 4831, pp. 220-221; Huddleston v. Manhatten Fire & Marine Ins. Co., 148 S.W.2d 74; Binswanger v. Employers' Liability Assur Corp., 28 S.W.2d 448; Homan v. Employers Reinsurance Corp., 136 S.W.2d 289. (4) Assuming action and judgment is a contractual prerequisite, such is merely a mode of proof of loss. Ocean Acc. & Guar. Corp. v. Southwestern Bell Tel. Co., 100 F.2d 441; Hocden v. Allstate Ins. Co., 147 S.W.2d 182. (5) And will not be required when such condition is impossible of performance. Strauther v. General American Life Ins. Co., 141 S.W.2d 128; Yeats v. Dodson, 127 S.W.2d 652; Schoen v. American Natl. Ins. Co., 180 S.W.2d 57.

Bond & Bond, Ray Bond and John S. Bond for respondents.

(1) Under the law of this state, there is no cause of action for personal injuries against the estate of a deceased alleged tort-feasor. Sec. 3670, R.S. 1939. Johnson v. Frank, 354 Mo. 767, 191 S.W.2d 618; Heil v. Rule, 327 Mo. 84, 34 S.W.2d 90; Schupe v. Martin, 12 S.W.2d 450. (2) Under the law of this state an action for personal injuries cannot be brought direct against the alleged tort-feasor's liability insurer nor can the liability insurer be joined as a party defendant in an action against the alleged tort-feasor, for the reason that there is not privity of contract between the injured party and the liability insurer of the party whose negligence is alleged to have caused the injuries; a liability insurance contract being for the benefit of the insured and not for the benefit of third parties. Taverno v. American Auto Ins. Co., 112 S.W.2d 941; Buehler v. Festus Mercantile Co., 119 S.W.2d 961. (3) It is even improper in this state, to inject into the trial of a case the fact that a liability insurance company is defending or is interested in the outcome of the case. Rytersky v. O'Brine, 355 Mo. 22, 70 S.W.2d 538; Buehler v. Festus Mercantile Co., 343 Mo. 130, 119 S.W.2d 961; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463. (4) The term "liability insurance" as used in the decisions cited by appellant, refers to the liability of the insurer to the insured, and distinguishes that type of insurance from indemnity insurance. There is no liability, under such a policy on the part of the insurer to the injured person and no right of recovery against the insurer unless the injured person has a cause of action and reduces same to a final judgment, in which event the insurer becomes indebted to the insured in the amount of the judgment, within the policy limits, and such indebtedness may be enforced by the injured party as incident to his judgment by legal garnishment or statutory action in equity. Secs. 6009, 6010, R.S. 1939; Schott v. Continental Auto Ins. Under-writers, 326 Mo. 92, 31 S.W.2d 7; Miller v. Collins, 328 Mo. 313, 40 S.W.2d 1062; Lajoie v. Central West Casualty Co., 228 Mo.App. 701, 71 S.W.2d 803. (5) The fact that a party is protected by a liability insurance policy does not enlarge the liability of such insured to third parties or create a cause of action against such insured for damages for personal injuries claimed to have been sustained by a third party, where no cause of action in favor of said third party against the insured exists under the law. Stedem v. Jewish Memorial Hospital Assn., 187 S.W.2d 469; Dille v. St. Luke's Hospital, 196 S.W.2d 615.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

The trial court sustained a motion filed by the defendants to dismiss plaintiff's petition on the ground that no cause of action was stated. From the judgment entered plaintiff appealed. Appellant's brief contains a concise and fair statement of the case and the issues presented. We are adopting said statement in toto. It reads as follows:

"Plaintiff's petition prayed damages in the sum of Eleven Thousand Dollars ($ 11,000) against the defendants for injuries alleged to have been received by him on account of the negligence of one G. T. Harrison in the operation of a motor vehicle. The original policy of insurance was issued to Ben E. Harrison on the 7th day of December, 1945. It contained two endorsements of automobile transfers, one dated December 13, 1945, and one dated September 18, 1946. The petition alleges that while such policy was in force, to-wit, on the 29th day of November, 1946, G. T. Harrison was operating the designated automobile with permission of the named insured and that while doing so he, by his negligent acts, occasioned the collision wherein plaintiff suffered injuries. G. T. Harrison, the driver, sustained mortal injuries and died as the result of such collision before suit could be filed. Suit was brought directly against Ben E. Harrison, administrator of the estate of G. T. Harrison, and the Indemnity Insurance Company of North America, the insurer.

"Appellant raises only one issue, which is based upon the following contentions, to-wit:

"That the contract of insurance was one of liability irrespective of the no-action clause, and hence liability under the policy contract attached immediately upon the occurrence of the injury. That the injured party (appellant) was a beneficiary under this contract, and if action and judgment against the insured be considered a contractual condition precedent under the no-action clause, such is analogous to proof of loss requirements and conditions, which, when impossible of performance, will not be considered prerequisite to relief.

"Pertinent portions of the policy contract under consideration are as follows:

"INSURING AGREEMENTS

I. Coverage A -- Bodily Injury Liability.

"To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including death at any time resulting therefrom, sustained by any person or persons, caused by accident arising out of the ownership, maintenance or use of the automobile.

II. Defense, Settlement, Supplementary Payments.

"As respects such insurance as is afforded by the other terms of this policy under coverages A and B the company shall

"(a) Defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent;

III. Definition of 'Insured'.

"The unqualified word 'insured' when used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.

"CONDITIONS

B. Financial Responsibility Laws

"Such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph.

G. "No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.

"Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person or organization any right to join the company as a codefendant in any action against the insured to determine the insured's liability.

"Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the company of its obligations hereunder."

Appellant under points and authorities, contends that the contract of insurance in this case is one of liability as distinguished from indemnity, despite the non-action clause contained in the policy; that liability to the beneficiaries arose at the time of the occurrence of the injury. A number of cases are cited, for example, Brucker v. Georgia Casualty Co., 32 S.W.2d 1088, 326 Mo. 856, wherein this court held that a contract of insurance, similar to the policy here in question, was...