Hartford Acc. & Indem. Co. v. List, 24762

Citation424 S.W.2d 761
Decision Date05 February 1968
Docket NumberNo. 24762,24762
PartiesHARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, Plaintiff-Respondent, v. Harry J. LIST, Irene D. Moore, James C. Minks, Florence E. Smith, Doyle Rushton, Defendants, Harry J. List, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

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424 S.W.2d 761
Harry J. LIST, Irene D. Moore, James C. Minks, Florence E.
Smith, Doyle Rushton, Defendants,
Harry J. List, Defendant-Appellant.
No. 24762.
Kansas City Court of Appeals, Missouri.
Feb. 5, 1968.

Michael F. Mahoney, Frank L. Cohn, Kansas City, for defendant-appellant.

William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, for plaintiff-respondent; Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, of counsel.

CROSS, Judge.

This is an action for a declaratory judgment brought by plaintiff insurance company against five defendants, named as follows:

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Doyle Rushton, owner of an Oldsmobile automobile and the named insured in a policy of automobile liability insurance issued by plaintiff; Irene D. Moore, who, while driving Rushton's car, had a collision with another automobile, on June 10, 1965; Florence Smith, a passenger riding in the Rushton car at the time of the collision and a claimant for damages for injuries; James C. Minks, owner and driver of the other automobile involved in the collision who also claimed damages; and Harry J. List, a passenger in the Minks' automobile who had filed a suit for personal injury damages.

Plaintiff in its petition alleges that a policy of liability insurance was issued by it to defendant Rushton; that Rushton's automobile was involved in a collision with the Minks' automobile while being operated by defendant Irene D. Moore; that defendant Harry J. List has filed suit against defendant Moore for damages for personal injuries allegedly resulting from the collision; that defendants Minks and Florence E. Smith also are asserting claims against defendant Moore as the operator of an automobile owned by defendant Rushton and insured by plaintiff; that the liability policy issued by plaintiff extends coverage to the named insured (Rushton) and to any other person using such automobile with the permission of the named insured, provided the actual operation thereof is within the scope of such permission. Plaintiff further alleges that a controversy has arisen as to whether at the time of the collision, defendant Moore was operating Rushton's automobile with his 'permission' as it is defined in the policy (so as to extend the liability coverage afforded by the 'omnibus clause' to defendant Moore as an additional insured) and whether Rushton as the named insured gave plaintiff the 'cooperation' required by the policy. It is plaintiff's prayer that the court declare its rights and obligations in the premises.

The issues of fact thus raised were tried with the aid of a jury, as permitted by Section 527.090 V.A.M.S. At the conclusion of the evidence the trial court instructed the jury that 'the issue of the cooperation of Doyle Rushton with the Hartford is withdrawn from the case.' The remaining issue, i.e., whether defendant Moore was operating defendant Rushton's automobile with his permission, was submitted to the jury by Instruction No. 2 which told the jury their verdict must be for plaintiff Hartford Accident & Indemnity Company if they believed that defendant Irene Moore Mooney did not have express permission from defendant Doyle Rushton to use his automobile at the time of the accident on June 10, 1965. The jury returned its verdict as follows: 'We, the undersigned jurors, find the issues for the plaintiff.' Upon this verdict the trial court entered the following judgment:

'WHEREFORE, it is ordered and adjudged by the Court that the issues before this Declaratory Judgment only be found in favor of the plaintiff, Hartford Accident and Indemnity Company and against the defendants and be it further declared as a fact that the Defendant Irene Moore Mooney did not have express permission from Defendant Doyle Rushton to use his automobile at the time of the accident on June 10, 1965; all of this to be a final order as to the aforesaid at defendants' costs, and execution will issue therefor.'

Appeal from the judgment is prosecuted solely by defendant List, sometimes hereinafter referred to as appellant. The questions presented are whether plaintiff's counsel made improper and prejudicial remarks in his opening statement and closing argument to the jury, and whether plaintiff's verdict directing instruction was erroneous.

The above mentioned collision was the culminating event of a brief acquaintance between defendants Rushton and Moore, both of whom were called by plaintiff as witnesses. From their testimony we learn the nature of their association and the

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facts which gave rise to this suit. Rushton identified himself as a single man who was employed as a professional over-the-road truck driver. He met Mrs. Moore about ten days prior to the collision at a bar in Kansas City. She was introduced to him by a mutual friend as a woman desiring employment at housekeeping work. After this meeting Mrs. Moore went to Rushton's home several times (the exact number not being clearly shown) and did some housecleaning. She denied that their relationship was 'anything more than that'. On one occasion she was an invited dinner guest at Rushton's home. On another occasion Rushton took Mrs. Moore to the home of one of her relatives. As best we can determine from the record, Rushton and Mrs. Moore were in each other's company six different times.

There is evidence that prior to the collision Mrs. Moore had used the vehicle on two occasions--both times with Rushton's express consent, and for the purpose of purchasing 'stuff for the housecleaning' at the shopping center. Rushton testified that on each of these occasions he handed the car key over to her. The first time she used the car was at noon on an unspecified date. He second use of the car was one night after she had ridden with Rushton to his place of employment. Rushton testified that on that occasion he told her to take the car for the specific purpose of getting some household articles and that she could use it that night. She kept the car in her possession overnight and next morning returned to Rushton's place of employment and picked him up.

There is direct conflict between the testimony of defendant Rushton and defendant Moore as to the course of the evening prior to the collision, and the circumstances attending Mrs. Moore's use of Rushton's automobile that night. According to Rushton, Mrs. Moore came to his home early in the evening in her own car and did some housecleaning work. She cleaned the kitchen and dining room, for which work he paid her $5.00. When she prepared to leave the house, Rushton was in his back bedroom doing some book work. She 'hollered' to him from the front part of the house and told him she had finished and was leaving. Rushton told her to take her pay out of his pocketbook on the table. Nothing was said about her taking his car and he first learned that she had taken it at about four o'clock on the following morning when he was notified of the collison by defendant Florence Smith. Rushton further testified: 'Q. And on this particular evening, how did she happen to have your car, do you know? A. The only way that she could have taken it, she taken it without my permission.' 'Q. Do you know when she left the house that she has been cleaning? A. No, I don't, because I was busy doing some bookkeeping in my bedroom.' 'Q. How did she get over to your house? A. She came in her car. Q. And at that time were you under the impression that she was leaving in her car? A. At that time I was, definitely. Q. Did you go outside to see if she did leave? A. I did not. Q. Did you know or recognize that she was taking your car when she left? A. I did not.' 'Q. Do you know where the lady got the key to your car? Do you know where the key was left? A. The key was left on my dining room table. Q. Was that your customary place of putting it? A. All of the time. Q. Had you ever given this lady permission to come in and pick the key up and take the car? A. No, sir. Q. On those other two occasions that you let her use the car how did you go about handing the key over to her? A. I handed it to her. Q. So it was never a matter of just taking the key and taking the car? A. That is true.' He had never given her 'blanket permission' to use the car and there had never been any 'implication' on his part to her that she could use the car whenever she liked. Rushton specifically denied that he had given Mrs. Moore his credit card; also that he had told her that he would take her car to a service station and have it repaired and that she could meanwhile use his car.

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