Helm v. Inter-Insurance Exchange for Auto. Club of Mo.
| Decision Date | 28 August 1945 |
| Docket Number | 6440 |
| Citation | 189 S.W.2d 422 |
| Parties | HELM v. INTER-INSURANCE EXCHANGE FOR AUTOMOBILE CLUB OF MISSOURI |
| Court | Missouri Court of Appeals |
Arthur W. Allen, of Springfield, Seiler, Blanchard & Van Fleet, of Joplin, and Moser, Marsalek & Dearing, of St. Louis, for appellant.
Norman & Foulke, of Joplin, for respondent.
BLAIR
At the October Term, 1944, an opinion was handed down by the writer then presiding judge of this Court, reversing and remanding this case. As FULBRIGHT then judge of this Court, concurred only in the result, and VANDEVENTER, J., did not sit, because he was not a member of this Court when the case was first argued, a rehearing was granted.
A rather unusual thing occurred in this case, as appellant filed a motion for rehearing, notwithstanding the fact that the original opinion reversed the judgment below and remanded the case. A rehearing was granted on the Court's own motion, and the motion of appellant seems never to have been acted upon, and we now overrule it.
We see no reason for changing the opinion written at the October Term, 1944, and herewith produce the same, without quotation marks.
We will generally note the parties as below, referring to respondent here as plaintiff and to appellant, Inter-Insurance Exchange for the Automobile Club of Missouri, as defendant. The plaintiff contends that this is entirely a suit in tort and not on the policy of insurance mentioned hereinafter. To that we must agree. The suit could not well be on the policy of insurance, because plaintiff concededly was not a person within the coverage of said policy of insurance, for the reason that, while he was a member of the household of T. C Helm, there is no question in this record but that plaintiff was under the age of sixteen years when the automobile accident, hereinafter mentioned, occurred.
Plaintiff recovered a verdict from the jury below for $ 6000, without punitive damages, as prayed for in the petition. Plaintiff entered a voluntary remittitur for $ 908, and judgment was thereafter rendered against defendant in the sum of $ 5,092. After unsuccessful motions for new trial and in arrest of judgment, an appeal was granted defendant to this Court.
The original suit, as outlined in plaintiff's amended petition, which we will hereafter call the petition, named appellant here and the Club Exchange Corporation as defendants. At the close of plaintiff's case, the trial court sustained a demurrer as to defendant Club Exchange Corporation, and that defendant then and there went out of the case. A demurrer was also filed at the close of the testimony as to appellant here, and such demurrer was overruled and the case then proceeded against appellant alone.
Before proceeding further, certain admitted facts may be detailed by us. One T. C. Helm owned the automobile here involved, and defendant issued to said T. C. Helm its policy of liability insurance, in force at the time of the accident hereafter mentioned. As alleged in plaintiff's petition, defendant 'did contract to insure said T. C. Helm, or any member of his household, from direct loss or expense arising or resulting from claims upon the said T. C. Helm, or any member of his household, by reason of the ownership or maintenance of the automobile hereinbefore described and the operation thereof while in use by said T. C. Helm, or any member of his household, for business or pleasure purposes, to an amount not exceeding five thousand dollars ($ 5,000.00) for bodily injuries or death to one person in any one accident, and ten thousand dollars ($ 10,000.00) for bodily injuries or death to two or more persons in any one accident, in the event said bodily injuries or death were accidently suffered or alleged to have been suffered by any person or persons as a result of an accident occurring while this policy is in force, and in addition said Inter-Insurance Exchange for the Automobile Club of Missouri, by the terms of its said contract, among other things, agreed to investigate all accidents covered by the policy and to defend all actions against the insured at its own expense in the name and on behalf of the insured whether groundless or not, and to pay all costs taxed against the insured in any legal proceeding arising out of an accident covered by this policy, and to pay any judgment obtained against the insured and accrued interest or any such judgment rendered in connection therewith, not in excess of the policy limits, after entry of judgment to date of payment.'
The plaintiff was a son of T. C. Helm and a member of his household, and therefore insured according to the terms of said policy of insurance, if within the terms of said contract of insurance. But, as before stated, plaintiff was only fifteen years of age at the time of the accident hereinafter mentioned. Said insurance policy, according to J.(a), page 41, of the abstract, did not apply 'While being driven by any person under the age limit fixed by law, or if no age limit fixed by law, under the age of sixteen (16) years.'
Therefore, plaintiff, who was admittedly under sixteen years of age at the time of the accident mentioned, could maintain no action under said policy of insurance and was remanded solely to an action in tort for the acts of defendant mentioned. It was further admitted that plaintiff had paid no part of the two judgments and costs rendered against him and no part of the $ 250.00 attorneys' fees incurred. It was also admitted that plaintiff was permitted by his father, T. C. Helm, to drive the automobile thus insured.
On the night in question, November 18, 1937, plaintiff with another young man and two young girls, including Pauline Toles, about the same age as plaintiff, were proceeding in the automobile of T. C. Helm about eight miles north of Joplin, Missouri, when such automobile, driven by plaintiff, overturned and all of said young people were more or less shaken up and injured. Suits were thereafter filed against plaintiff by said Pauline Toles and her parents for his alleged negligence in operating said automobile.
As the jury was being examined on its voir dire, it was ascertained that plaintiff was under sixteen years of age at the time of said accident. There is no controversy in...
To continue reading
Request your trial