Hall v. Weston

• Decision Date: 15 April 1959
• Docket Number: No. 46932,No. 1,46932,1
• Citation: 323 S.W.2d 673
• Parties: Margie Kay HALL, Ronald Lee Hall, Donald LeRoy Hall, and Thelma Wilcutt, Appellants, v. Joyce Powell WESTON, and Farm Bureau Mutual Insurance Company of Missouri, a Corporation, Garnishee-Respondents
• Court: Missouri Supreme Court

Page 673

323 S.W.2d 673

Margie Kay HALL, Ronald Lee Hall, Donald LeRoy Hall, and Thelma Wilcutt, Appellants, v. Joyce Powell WESTON, and Farm Bureau Mutual Insurance Company of Missouri, a Corporation, Garnishee-Respondents.

No. 46932.

Supreme Court of Missouri, Division No. 1.

April 15, 1959.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 11, 1959.

Bloodworth & Bloodworth, Poplar Bluff, For appellant.

Roberts & Roberts, J. Richard Roberts, Farmington, for respondents.

COIL, Commissioner.

In this garnishment proceeding instituted by plaintiffs below in an attempt to collect from insurer judgments theretofore rendered in their respective actions for damages, the trial court at the close of plaintiffs' evidence directed a verdict for insurer-garnishee and plaintiffs have appealed from the ensuing judgment.

On October 10, 1955, Joyce Weston drove a 1955 GMC tractor with a 1948 Fruehauf semitrailer attached, both owned by Carter Fogle, into collision with an automobile operated by Roy Wilcutt in which Patsy Hall was a passenger. The collision resulted in the deaths of Wilcutt and his passenger, Mrs. Hall. Mrs. Hall's minor children, through a next friend, and the widow of Roy Wilcutt, brought separate actions for damages for wrongful death. Both actions named Weston and Fogle, the driver and owner, as defendants. The cases were consolidated for trial and a jury waived. On September 19, 1957, the trial court entered a judgment in each case for $10,000 against Weston and a judgment in favor of defendant Fogle. After executions had been returned unsatisfied, these garnishment proceedings were instituted against insurer, Farm Bureau Mutual Insurance Company of Missouri, a corporation (hereinafter sometimes called Farm Bureau), as garnishee and interrogatories, answers thereto, and plaintiffs' reply were filed. The garnishments were treated as though they had been consolidated and the parties proceeded to trial with the result stated above.

It is agreed that on April 20, 1953, Farm Bureau issued its policy to Carter Fogle covering his 1952 GMC cab and chassis and 1947 Nebors trailer and that that policy was in full force and effect on October 10, 1955, the accident date. It is also undisputed that Weston, Fogle's driver, was at the time of the accident operating a 1955 GMC tractor (cab and chassis) pulling a 1948 Fruehauf trailer. It apparently is also undisputed that Farm Bureau was immediately aware of the accident.

The meritorious issue was and is whether under the applicable law in the light of the provisions of the instant insurance policy and under the evidence adduced by plaintiffs, there was a jury question as to whether the tractor and trailer being operated at accident time were covered by the policy in question.

Plaintiff's theory was and is that on August 10, 1955, Carter Fogle, insured, notified Farm Bureau through its agent that he had acquired the 1955 tractor and the 1948 trailer to replace the 1952 tractor and the 1947 trailer, and that as a result of such notice, the policy, by its terms, covered the newly acquired tractor and trailer.

The trial court directed a verdict for garnishee on the stated grounds: that plaintiffs' proof was insufficient to constitute a prima facie showing that John Barth, Farm Bureau's agent whom insured said he notified, was an agent with authority to 'bind the Farm Bureau Mutual Insurance Company of Missouri,' and that plaintiffs' evidence failed to show that insured had an insurable interest in the 1948 Fruehauf trailer.

For the reasons which will appear we hold that the trial court erred in directing a verdict for garnishee.

The pertinent provisions of the insurance policy admittedly issued to Carter Fogle by Farm Bureau and admittedly in force on the accident date are decisively important. Under that policy, Farm Bureau agreed to pay (within stated limits) the sums of money which insured became obligated to pay by reason of liability imposed upon him for damages because of bodily injury including death caused by accident arising out of the ownership or use of the 'automobile.' The 'insured' included, in addition to the named insured, any person using the 'automobile' with named insured's permission. Policy provisions with respect to the definition of 'automobile' were:

'IV. Automobile Defined, Trailers, Two or More Automobiles. Except where stated to the contrary, the word 'automobile' means:

'(1) Described Automobile--the motor vehicle or trailer described in the declarations; * * *

'(5) Newly Acquired Automobile--an automobile, ownership of which is acquired by the named insured, owner of the described automobile, if he notifies company within 30 days following its delivery date. * * *

'When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each but a motor vehicle and a trailer or trailers attached thereto shall be held to be one automobile as respects limits of liability under Coverages A and B and separate automobiles as respects limits of liability, under Coverages D, E and E-1.

'The named insured shall pay any additional charge required because of application of insurance to such other automobile. Insurance terminates on a replaced automobile on delivery date of the replacing automobile.'

The 'declarations' mentioned in (1) above described the vehicle insured as a 2-ton 1952 GMC cab and chassis and appearing also on the face of the 'declarations' were the 'typed in' words, 'Tow Trailer endorsement.' And attached to the paper titled 'declarations' was a paper titled 'Tow Trailer Endorsement' describing the 1947 Nabors trailer. The endorsement was an integral part of the policy and thus the policy as written insured the 1952 chassis and the 1947 trailer.

Construing the foregoing provisions as a part of the whole policy and where open to different constructions favorably to insured but reasonably, Aetna Life Ins. Co. of Hartford v. Durwood, Mo., 278 S.W.2d 782, 786[2, 3], it is clear that under the terms of Section IV the 'Described Automobile' in the 'declarations' was the 1952 GMC tractor and the 1947 Nabors trailer. It is true that the 1947 trailer was described in the 'tow trailer endorsement' which was attached to the 'declarations,' but it is equally true that the 'tow trailer endorsement' became and was a part of the 'declarations' by reference by reason of the language 'Tow Trailer endorsement' appearing on the face of the 'declarations.' That such must have been the intention of insurer is emphasized when it is considered that the amount of the premium (itemized on the face of the 'declarations') did not include any separate charge for insuring the trailer, i. e., the total premium was for a 1952 cab and chassis which included the charge for the trailer as a part of the insured unit. And, of course, it is apparent that the premium on a tractor (a cab and chassis) would normally include the charge for a trailer or trailers to be pulled by that tractor for usually such tractors are not operated on the highways unattached to trailers. We have no doubt, and therefore hold, that the 'automobile' described in the 'declarations' was the unit consisting of the 1952 tractor and the 1947 trailer, and, thus, that such unit was the 'automobile' described in the policy.

It is also clear to us that under IV(5) above the 'automobile' covered by the policy included a 'newly acquired automobile,' which, as defined in the policy, was an automobile acquired by the owner of the 'automobile' described in the original policy if the insured owner notified the 'company' within 30 days following the delivery date of such 'newly acquired automobile.' The only duty on insured in that respect was to notify the company within 30 days after acquisition and if he did so the 'newly acquired automobile' (which had been covered for 29 days without any action on insured's part) became an 'automobile' as defined in the policy and the same insurance remained in force and covered the 'newly acquired automobile' until further action by the company. We observe that under the provisions of IV(5) above quoted, the policy provision requiring notice to the company of a 'newly acquired automobile' within 30 days following acquisition thereof by insured was obviously only a device by which the company was to obtain information upon which it might thereafter act in the way it might choose; and such a provision should be distinguished from provisions often in policies which require notice and a prescribed action based thereon conditional to continuation of or transfer of insurance, e. g., the acceptance by insurer of a different vehicle and issuance of a document effecting new or transferred insurance. Here, however, the insurance contract continued on 'newly acquired automobiles' until the company acted upon the information it had received--no action was prescribed. We assume, e. g., the company might as a condition to continuing the insurance, charge an additional premium, it might cancel the insurance if permitted under policy terms, or it might make other provisions with respect to the continuation of insurance on the 'newly acquired' vehicles.

Presently most important, however, is the fact that insured had fulfilled his only duty under the terms of the policy when he had notified the company within 30 days after he acquired a new 'automobile' of the fact of his acquisition. And we note further that 'newly acquired automobile' under IV(5) apparently meant not only one that might replace the unit described in the 'declarations' but included also an additional 'automobile,' i. e., a unit in addition to the one described in the 'declarations.' Such seems correct when the language of the last paragraph under (5) above is considered: 'The named insured shall pay any additional charge required because of application of insurance to such other automobile. Insurance terminates on a replaced automobile on delivery...