Hartford Acc. & Indem. Co. v. J & S Sewer Const. Co., Inc.
| Decision Date | 06 September 1977 |
| Docket Number | No. 37303,37303 |
| Citation | 556 S.W.2d 206 |
| Parties | HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Appellant, v. J & S SEWER CONSTRUCTION COMPANY, INC., and Fee Fee Trunk Sewer, Inc., Defendants-Respondents. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Kortenhof & Ely, Robert L. Nussbaumer, St. Louis, for plaintiff-appellant.
Fitzsimmons & Fitzsimmons, Attys., Inc., Daniel J. McMichael, Clayton, for Fee Fee Trunk Sewer, Inc.
David Welsh, Bridgeton, for J & S Sewer Const. Co., Inc.
Hartford Accident and Indemnity Company recovered a judgment for $5,000 in its suit for subrogation against J & S Sewer Construction Company and Fee Fee Trunk Sewer, Inc. Defendants' motions for a new trial were sustained. Hartford appealed.
A new trial was granted for failure on the part of Hartford to make proof in four respects, which we consider in order.
First, failure to present evidence of plaintiff's corporate entity. In its amended petition plaintiff alleged its corporate existence. Defendants' answers stated they did not have sufficient information to form a belief as to the truth of the allegation and therefore denied the allegation. Neither defendant raised an issue as to the legal existence of Hartford by specific negative averment with supporting particulars as required by § 509.140, RSMo 1969 in order to place upon Hartford the burden of proof on the issue of Hartford's legal existence or capacity to sue. Accordingly, under § 509.140 it was sufficient to aver the ultimate fact, and plaintiff was not obligated to introduce evidence on the issue. United Farm Agency v. Howald, 263 S.W.2d 889, 893 (Mo.App.1954).
Second, failure to introduce in evidence the insurance policy issued by Hartford to Upson Construction Company and failure to prove the policy provisions relied upon as the basis for Hartford's claimed right of subrogation. Hartford pleaded that on December 10, 1971 there was in effect a policy of insurance issued to Upson providing liability coverage in connection with its construction business; that Upson constructed a residence building which it sold to H. D. Mephan; that pursuant to subcontract with Upson, J & S Sewer Construction Company installed a sewer system leading to the residence building; that through the negligence of J & S in its installation the basement was flooded; that Fee Fee Trunk Sewer, Inc. was negligent in failing to inspect the sewer system constructed by J & S; that an inspection would have revealed the improper installation; that Mephan, damaged by flooding, made a claim against Upson for breach of implied warranty of fitness for the purpose intended; that to minimize damages Hartford negotiated a settlement of Mephan's claim against Upson, the insured, for $5,000, after first notifying J & S and Fee Fee of the claim and of Hartford's intention to settle the claim should they fail to do so; that they did so fail; that Hartford settled Mephan's claim for $5,000 and that "Under and by virtue of said policy of insurance issued by plaintiff to said Upson Construction Company, plaintiff was and is now subrogated to all rights of recovery the said Upson Construction Company may have against the defendants arising out of said payment." Hartford prayed for judgment for $5,000 and attorneys' fees.
Hartford did not introduce in evidence the policy or a file copy of the policy. All that appears is that it was "a comprehensive business policy providing Upson with complete operation coverage." What that means was not developed. There was nothing to show that under the policy Hartford had the duty or authority to negotiate a settlement of Mephan's claim, or that Hartford was obligated to pay his unliquidated claim. Hartford did not prove that the policy contained a subrogation provision, and consequently did not prove the terms of any subrogation provision. Hartford did not produce as a witness the adjuster who made the settlement with Mephan. He was no longer with the company and his whereabouts were unknown. Hartford's principal witness was James Trelford, its senior claims representative. Having no personal knowledge of the transaction he testified from the records, of which he was custodian. From the investigative file he testified that Hartford had in effect a comprehensive business policy of insurance providing Upson with complete operation coverage; that Hartford notified J & S and Fee Fee that a claim had been made and that Hartford would attempt settlement; that Hartford "hoped" that J & S and Fee Fee "would agree to a percentage of the settlement or come in and take...
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