Hill v. Seaboard Fire & Marine Ins. Co., 23849

• Court: Missouri Court of Appeals
• Writing for the Court: HUNTER
• Citation: Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606 (Mo. App. 1963)
• Decision Date: 02 December 1963
• Docket Number: No. 23849,23849
• Parties: Barbara J. HILL, Plaintiff-Respondent, v. SEABOARD FIRE & MARINE INSURANCE COMPANY, a Corporation, Defendant-Appellant.

Page 606

374 S.W.2d 606

Barbara J. HILL, Plaintiff-Respondent, v. SEABOARD FIRE & MARINE INSURANCE COMPANY, a Corporation Defendant-Appellant.

No. 23849.

Kansas City Court of Appeals, Missouri.

Dec. 2, 1963.

Robert S. McKenzie (McKenzie, Williams, Merrick, Beamer & Stubbs), Kansas City, John M. Belisle (Belisle & McNabb), Butler, for appellant.

E. J. Murphy, Butler, for respondent.

HUNTER, Judge.

This is a suit on the uninsured motorists clause of an automobile insurance policy issued by defendant-appellant, Seaboard Fire and Marine Insurance Company to plaintiff-respondent, Barbara J. Hill and her husband, Harry A. Hill. Plaintiff obtained a verdict and judgment for $8,000 in the circuit court of Henry County and defendant has appealed.

The background of the action is that on December 31, 1961, plaintiff was driving a 1955 Chevrolet, owned by her and her husband, south on U. S. Alternate Highway 71 about two miles south of Carthage, Missouri, when her car was struck from the rear by a Falcon automobile driven by a soldier named Abe Corley, causing injuries to her.

Plaintiff's brother-in-law came to the scene and took her to the hospital in Carthage. Defendant was given notice of the accident. While plaintiff was in the hospital she gave a signed statement describing the occurrence to defendant's adjuster from Joplin, and she and her husband made a settlement of $500.00 under the insurance policy with defendant insurance company for the Chevrolet car damage. However defendant insurance company denied liability for plaintiff's personal injuries under its uninsured motorists clause; hence this action.

The uninsured motorists clause provides that defendant company will pay all sums which the insured 'shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile * * *.' The policy defines an 'uninsured automobile' to mean 'an automobile or trailer with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile * * *.'

On this appeal defendant makes three contentions; namely, that it should have received a directed verdict because (1) there was not sufficient competent evidence to support a finding that the other motorist was uninsured; (2) because plaintiff did not comply with the terms of her policy providing that determination of whether she is legally entitled to recover damages and the amount shall be by agreement, and if they fail to agree, by arbitration, in that she instituted suit before there was a breakdown of settlement negotiations; and (3) that the trial court erred in permitting plaintiff to offer evidence to establish negligence of a third party and damages therefor and to submit those issues to a jury in an action 'ex contractu'.

Relative to defendant's first contention, no separate point has been made by defendant complaining of any prejudicial error on the part of the trial court in admitting into evidence any particular testimony. Rather, defendant has contended itself with the charge that there was not sufficient competent evidence to support a finding that Corley was uninsured. The evidence on this question is confined to the testimony of three witnesses--plaintiff, her husband and defendant's claim adjuster, Prudden; together with a letter he wrote.

Plaintiff, who was the first witness, testified that at the scene of the accident Corley told her he had insurance and that he gave her husband a card with the name 'Farmer's Mutual' on it. She stated on February 7, 1962, Mr. Prudden came to her. Defendant's counsel asked, 'Q. Well, what was the purpose of that call, what went on, what conversation took place? A. Well, he wanted to--he wanted to make a settlement, and we didn't agree on what he wanted to give us, and he also told us that Corley definitely didn't have any insurance.' * * * 'Q. Did he tell you at the time that he had tried to find insurance on the Corley vehicle? A. Yes, he did. * * * He said that some one had talked to Corley at Arkansas and that he did not have insurance.' Defendant's counsel unsuccessfully moved that the answer to the last question be stricken. Plaintiff was asked, 'Q. Did Mr. Prudden still acknowledge that the Seaboard Fire & Marine Insurance Company admitted that there was no liability insurance on the Corley vehicle at the time of this accident? A. Yes, he did.'

Plaintiff's husband, Mr. Hill, testified that at the request of Mr. Westbrook he called Farmers Mutual Insurance Company and they told him Corley did not have any policy. The trial court overruled defendant's motion to strike this statement as being made by one not authorized to bind defendant corporation and as hearsay. Mr. Hill testified without objection that Prudden told him defendant considered Corley to be an uninsured motorist and that he, Prudden, was ready to settle the claim if they were and that Prudden offered seven or eight hundred dollars in settlement.

On cross-examination defendant's counsel asked Mr. Hill 'if there was any conversation about whether any claim was being made under that coverage of your policy, with Mr. Westbrook (defendant's Joplin adjuster)? A. Well, after he found out that Mr. Corley didn't have, yes, there was.'

Mr. Prudden testified he had been the claims adjuster for defendant for 11 1/2 years. He stated it was his job as claims adjuster to investigate and adjust insurance claims and losses; that he was authorized to and did handle settlement of claims and had authority without consultation with anyone to settle claims and write checks therefor. In answer to defendant's counsel's question he stated he contacted plaintiff and her husband, went over the aspects of the policy including the uninsured motorists portion; that he 'found out that there had been other insurance--I think Mr. Hill stated that.' * * * Well, I told them that we did not know whether we had, or whether our company would be able to take over until we had established the uninsured motorists coverage * * *.' He informed them he 'would be agreeable to trying to work something out around $700,00 if there wasn't any insurance on the other vehicle.' He conceded he gave defendant's attorney letters received from Farmers Mutual saying they didn't have coverage on the Corley vehicle at the time of the accident. He stated without objection that the agent of Farmers Mutual 'told this Corley boy that his policy was cancelled (prior to the accident).' He conceded that as of the date of the trial his company's investigation did not turn up any insurance of Farmers Mutual or of anyone else; that he had found insurance in Farmers Mutual that would have covered the boy if it had not been cancelled prior to the accident.

Nine days before suit was filed Prudden wrote plaintiff's counsel, 'We wish to advise that we have been unsuccessful in locating any liability insurance on the Corley vehicle at the time of this accident. Therefore, we shall be pleased to handle this matter under the Uninsured Motorists Protection of our policy.'

Plaintiff has the burden of proof and it was incumbent on her to prove (1) that the other motorist in the accident was uninsured, (2) that the other motorist is legally liable to the insured, and (3) the amount of such liability. We are convinced that the above outlined evidence, omitting from consideration that to which defendant's counsel made timely objection, is sufficient for the jury to have found that the other motorist was uninsured, and, hence, that the trial court did not err in refusing to direct a verdict for defendant at the close of the case because of lack of evidence that Corely was an uninsured motorist. While some of this evidence is hearsay, it was not objected to, and in fact was adduced by defendant's counsel. It is the established rule that hearsay evidence, if not objected to, is admissible and may be considered, along with other evidence, in determining whether a submissible case has been made.

It is uncontroverted that Prudden was the agent of the defendant and was acting within the scope of his authority at all of the times he contacted the Hills, investigated the claim and discussed it with them. His declarations in the nature of admissions against the interest of the defendant made within the course and scope of his employment while his investigation of plaintiff's claim was pending and made in direct connection therewith and as a part of the...