Helmkamp v. American Family Mut. Ins. Co.
| Decision Date | 03 October 1966 |
| Docket Number | Nos. 8553,8554,s. 8553 |
| Citation | 407 S.W.2d 559 |
| Parties | Patricia Ann HELMKAMP, a Minor, by Ivan Helmkamp, Guardian and Curator, Plaintiff-Appellant, v. The AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a corporation, Western Fire Insurance Company, a corporation, and Karen Sue Fleming, a Minor, Defendants-Respondents. Patricia Ann HELMKAMP, a Minor, by Ivan Heimkamp, Guardian and Curator, Plaintiff-Respondent, v. The AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a corporation, Western Fire Insurance Company, a corporation, Defendants-Respondents, Karen Sue Fleming, a Minor, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Karl W. Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for plaintiff-appellant, Patricia Ann Helmkamp.
B. H. Clampett, R. A. Ellis, Jr., Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-respondent American Family Mutual Insurance Co.
Edward G. Farmer, Jr., James E. Brown, Joplin, for defendant-respondent, Western Fire Insurance Co.
Pinnell & Monroe, Monett, for defendant, Karen Sue Fleming.
This reconnoitering action was instituted to shanghai two insurance policies aboard a $100,000 damage suit now at anchor and ready to set sail in the Circuit Court of Lawrence County, Missouri. The damage suit defendant called upon the two respondent insurance companies to defend her in that action and to pay any adverse judgment that might be rendered. When the companies declined the honor, she then instituted the present declaratory judgment procedure to determine the disputes among the parties. 1
Following transfer of this case from the Circuit Court of Lawrence County, the erudite judge of the Circuit Court of Newton County decided the matter without the aid of a jury and the disappointed parties (the damage suit plaintiff and defendant) have perfected their separate appeals to this Court which we have consolidated for consideration. Although the damage suit petition claims $100,000 in damages, that suit is still pending and the pleadings in our instant case do not request money judgments. Therefore, short of surmise and conjecture, we have no way of knowing what the money judgment, if any, will be in the damage suit or the amount of monetary interest either appellant might acquire under the policies, even assuming their positions are correct. Consequently we have jurisdiction of this case on appeal. 2
The Lutheran Church and Lutheran School are on opposite sides of Highway H as it runs north and south through the corporate limits of Freistatt, Missouri. The home of Oscar and Mable Bremer, husband and wife, and their son Robert (sometimes called 'Bobby'), is located about one-half mile north of the church and school. Mr. and Mrs. Bremer were title owners of the 1960 Ford automobile involved in the accident in question. This vehicle was described in the automobile liability insurance policy issued to Oscar Bremer, as the sole named insured, by The American Family Insurance Company, a respondent here and hereinafter called 'American.' The omnibus clause in American's policy designated 'persons insured' to be '(1) the named insured,' and '(2) any other person using such automobile with the permission of the named insured, provided his operation or, if not operating, his other actual use thereof is within the scope of such permission.' The term 'named insured' was defined to mean 'the individual or husband and wife named as such in the declarations, but if only one individual is named, the term 'named insured' also includes his spouse if a resident of the same household.'
Patricia Ann Helmkamp, minor daughter of Ivan Helmkamp, is the plaintiff-appellant here and the damage suit defendant in the action pending in the Circuit Court of Lawrence County. Western Fire Insurance Company, hereafter called 'Western' and a respondent in this Court, had issued its automobile liability insurance policy to Ivan Helmkamp and, in respect to 'Use of Other Automobiles,' afforded coverage to 'any relative of such named insured or spouse.' However, this coverage did not apply 'to any automobile * * * used without the express or implied permission of the owner.' In this case, Western's liability, if any, 'shall be excess insurance over any other valid and collectible insurance.'
Karen Sue Fleming was a minor passenger in the 1960 Ford driven by Patricia Helmkamp at the time of the accident. She is the damage suit plaintiff and the defendant-appellant here. Wilfred L. Atwell was local agent for American. Our decision in this case has made it unnecessary to determine whether or not Mr. Atwell possessed all the attributes of agency to bind American with his words and conduct. Likewise, we do not undertake to delve into the authorities cited us by appellants in support of their urging that parol evidence is admissible in a reformation case to prove the true intentions of contracting parties where ambiguity or mutual mistake exist, or that, under proper circumstances, an oral contract of insurance can be enforced. Without deciding these matters in relation to this case, we have simply assumed the agency, accepted at face value all the oral testimony offered, and acknowledged the general principle that oral insurance contracts are possible when proven legally.
The Walther League, we are told, is a religious organization of the Lutheran Church for young people and that youngsters commence participating in the league at about the age of fourteen years. League meetings in Freistatt are held in the Lutheran School most every Wednesday commencing at 8 P.M. and concluding around 10:15 or 10:30 P.M.
Robert Bremer, who was sixteen years old on January 23, 1963, and Patricia Helmkamp, a junior in high school that same year, had been acquainted since they were third grade classmates in the Lutheran School. Both were members of the Walther League, but had never 'dated,' and Robert had never taken Patricia to or from a meeting in the Bremer family car. While their parents were acquainted, they did not visit socially, and to her recollection Patricia had been a guest in the Bremer home on only one occasion, which was to attend a birthday party when she and Robert were in the third or fourth grade.
When Robert secured his driver's license in about March of 1963, his parents did not 'turn him loose' with the 1960 Ford. Rather, they accompanied him while driving to observe his ability, and it was a month or a month and a half thereafter before he was permitted to take the car alone to a Walther League meeting. In reference to taking the Ford to League meetings, Mr. Bremer told his son 'I expected him to take the car, park it unless he had a girl friend to take home.' Mr. Bremer further admonished Robert that Mr. and Mrs. Bremer never discussed with Robert the matter of allowing, or not allowing, others to drive the family automobile. 'I never thought of it, and it never dawned on me.' Robert was permitted to take the Ford alone less than 'the average of twice a week' although 'it was kind of an understanding' he could take it to Walther League.
Patricia Helmkamp testified that it 'was not at all unusual,' either before or after the Wednesday league meetings for one 'kid' to drive another 'kid's' car and this driving would be 'either around the block or south to the first corner or north to the corner.' Robert asserts that before the date of the accident he had never given anyone permission to drive the Bremer car. A young lady witness said she had driven the Ford one time with Robert's permission, but could not state when this transpired. In any event, before the accident date Patricia had never operated the Bremer car and neither Mr. Bremer nor Mrs. Bremer had any reason to believe she would ever drive it or that Robert would let anyone drive the car when it was entrusted to him. What the practics of the 'kids' may have been at League meetings in operating automobiles was entirely unknown to Mr. and Mrs. Bremer.
On Wednesday, November 27, 1963, Robert announced he was going to Walther League. His father told him to 'have a good time, be careful, be a good boy, and be in at eleven.' Robert departed home driving the 1960 Ford and parked it in front of the school twenty to twenty-five minutes before eight. While talking with some friends, Patricia approached and asked Robert for the keys to the Bremer car. Robert recalled Patricia wanted the car to 'drive around the block,' but Patricia has no recollection of any restrictions being placed on where she might operate the Ford and says she did not tell Robert where she intended to go. Patricia just 'put on that womanly charm' and Robert tossed her the keys. Accompanied by Karen Fleming and three other girls, Patricia got into the Ford, circled the block and returned to in front of the school. By that time the Ford had 'caught up with' a vehicle being driven by an acquaintance. Patricia, instead of stopping in front of the school, followed this vehicle north on Highway H, and when the Ford was one and three-fourth miles north of the school it became involved in the accident from which the damage suit ensued.
The policy issued Oscar Bremer by American was to be effective for an initial period of six months from March 17, 1962, to September 17, 1962. The policy was renewable for successive six month periods upon payment of premium notices, and had been renewed from September 17, 1962, to March 17, 1963, from March 17, 1963, to September 17, 1963, and from September 17, 1963, to March 17, 1964. Oscar Bremer had purchased the Ford and paid all the insurance premiums without any financial assistance from his son, Robert.
After Robert became sixteen and about the time he was to secure his driver's...
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