Harding v. State Farm Mut. Auto. Ins. Co., 54345

• Citation: 448 S.W.2d 5
• Decision Date: 22 December 1969
• Docket Number: No. 54345,54345
• Parties: Nevins HARDING, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
• Court: United States State Supreme Court of Missouri

Page 5

448 S.W.2d 5

Nevins HARDING, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.

No. 54345.

Supreme Court of Missouri, En Banc.

Dec. 22, 1969.

Padberg, Raack, McSweeney & Slater, William J. Raack, St. Louis, for respondent.

Murphy & Kortenhof, Edward E. Murphy, Jr., John R. Courtney, St. Louis, for appellant.

MORGAN, Judge.

Plaintiff, insured, sued defendant, insurer, under the uninsured motorist coverage provisions of a policy issued by defendant to plaintiff. Default judgment was taken in the amount of $10,000, which was the limit of coverage provided. Defendant has appealed.

Having sustained defendant's application for transfer from the St. Louis Court of Appeals, we are to review the case 'as on original appeal.' Rule 84.05(h), V.A.M.R.

Briefly, plaintiff claims that while driving his insured automobile on December 19, 1966, he was involved in a collision with another motor vehicle, operated negligently by a person who was not insured, under circumstances giving rise to a claim under the uninsured motorist coverage of his own policy. Defendant's basic contention, on this appeal, is that plaintiff's petition failed to state a cause of action in that it did not allege the performance or occurrence of conditions precedent, created by the policy, and that this defect was not cured by plaintiff's evidence.

The petition, filed on March 2, 1967, was premised on Insuring Agreement III on page 5 of the policy and which, in part, provided:

'Uninsured Automobile Coverage: Coverage U--Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; * * *'

The petition did not contain any other reference to the policy provisions. However, defendant's arguments call for consideration of those policy conditions applicable to the specific insuring agreement involved.

The relevant general policy conditions provided:

(1) 'In the event of an accident, occurrence or loss, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.'

(2) 'No action shall lie against the company: (a) Unless as a condition precedent thereto there shall have been full compliance with all terms of this policy. * * * (c) Under coverages * * * U * * * until 30 days after the required notice of accident, occurrence or loss has been filed with the company.'

One further condition, specifically applicable to the uninsured motorist coverage, provided:

'Proof of Claim; Medical Reports. As soon as practicable, the insured or other person making claim shall give to the company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment and other details entering into determination of the amount payable hereunder. * * * The injured person shall submit to physical examinations by physicians selected by the company when and as often as the company may reasonably require and he * * * shall upon each request from the company execute authorization to enable the company to obtain medical reports * * *'

Service of process was had on March 8, 1967, under the provisions of Section 375.210, RSMo 1959, V.A.M.S., by service upon the Superintendent of Insurance. Defendant did not file a responsive pleading. On May 17, 1967, the cause was submitted as a default matter. Evidence was offered reference the accident and plaintiff's injuries, but no evidence was offered which tended in any manner to show plaintiff had complied with any of the conditions set out in the policy.

On July 21, 1967, defendant filed with the trial court its motion to stay execution upon the judgment, and also filed in the St. Louis Court of Appeals a motion for the filing of an 'untimely' notice of appeal pursuant to Rule 82.07, V.A.M.R. This rule provides: '* * * The special order may be allowed by the appellate court, upon motion and notice to adverse parties, and upon a showing by affidavit, or otherwise, that there is merit in the appellant's claim for the special order and that the delay was not due to appellant's culpable negligence.'

The motion, after admitting service of process upon defendant, alleged:

(1) The petition and summons were lost in transmittal and never reached that person authorized to adjust or defend the claim.

(2) Plaintiff failed to comply with the conditions precedent to liability of defendant under the terms of the policy.

(3) That he failed to furnish medical authorizations requested by defendant as evidenced by a letter of one of plaintiff's attorneys dated March 16, 1967.

(4) The evidence supports an inference plaintiff was guilty of contributory negligence, as shown by a statement of the driver of the other automobile, in that plaintiff negligently made a left turn from the right lane directly into the path of the other automobile.

(5) That plaintiff's testimony at the trial that his automobile was struck in the rear was incorrect in that a photograph of his automobile revealed it was struck in the left side.

Affidavits were attached to the motion seeking to confirm the accuracy of the contentions therein. One is of particular interest. A representative of defendant submitted that he had been negotiating with an attorney of plaintiff; that he personally discussed the claim...