Hocken v. Allstate Ins. Co.

• Decision Date: 04 February 1941
• Citation: 147 S.W.2d 182,235 Mo.App. 991
• Parties: EMMA HOCKEN, (PLAINTIFF) APPELLANT, v. ALLSTATE INSURANCE COMPANY, A CORPORATION, AND ALLSTATE FIRE INSURANCE COMPANY, A CORPORATION (GARNISHEES) RESPONDENTS, ERNEST L. NEEF, (DEFENDANT)
• Court: Missouri Court of Appeals

147 S.W.2d 182

235 Mo.App. 991

EMMA HOCKEN, (PLAINTIFF) APPELLANT, v. ALLSTATE INSURANCE COMPANY, A CORPORATION, AND ALLSTATE FIRE INSURANCE COMPANY, A CORPORATION (GARNISHEES) RESPONDENTS, ERNEST L. NEEF, (DEFENDANT)

Court of Appeals of Missouri, St. Louis

February 4, 1941

Appeal from Circuit Court of the City of St. Louis.--Hon. Wm. S Connor, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Clark M. Clifford and Robert G. Maysack for respondents.

(1) (a) Plaintiff could have raised any defense in the equity suit in which policy was canceled, which plaintiff seeks to raise in case at bar. Monticello Bldg. Corp. v. Monticello Inv Co., 330 Mo. 1128, 52 S.W.2d 545, 550; 34 C. J. 818 sec. 1236; Cordia v. Matthes, 344 Mo. 1059, 130 S.W.2d 597, 598. (b) Equity judgment canceling policy is binding upon Emma Hocken as a privy of defendant Neef in equity action. Myers v. Miller, 55 Mo.App. 338, 342; State ex rel. National Subway Co. v. City of St. Louis, 145 Mo. 551, 46 S.W.2d 981, 985; General Casualty & Surety Co. v. Kierstead (C. C. A. 8), 67 F.2d 523; Hunt v. Dollar, 224 Wisc. 48, 271 N.W. 405; Houran v. Preferred Acc. Ins. Co., 109 Vt. 258, 195 A. 253; Emery v. Pacific Employers' Ins. Co., 8 Cal. (2d) 663, 67 P.2d 1046; Rushing v. Commercial Casualty Ins. Co., 251 N.Y. 302, 167 N.E. 450; Neilson v. American Mut. Liab. Ins. Co., 111 N.J. L. 345, 168 A. 436; Hutt v. Travelers' Ins. Co., 10 N.J. L. 57, 164 A. 12; Ocean Acc. & Guar. Corp. v. Schroeder (C. C. A. 6), 48 F.2d 727; U. S. F. & G. v. Wyer (C. C. A. 10), 60 F.2d 856; Georgia Casualty Co. v. Boyd (C. C. A. 9), 34 F.2d 116; General Accident Corp. v. Industrial Accident Commission, 196 Cal. 179, 237 P. 33. (2) Plaintiff's allegations of fraud of respondents and Neef in not offering defense of waiver and estoppel has no merit because acts of respondents alleged to give rise to waiver and estoppel did not constitute a defense to the equity suit. Eddy v. Nat'l Union Indem. Co. (C. C. A. 9), 78 F.2d 545; Frick v. Miller's National Insurance Co. (Mo.), 184 S.W. 1161; Park v. Fidelity & Casualty Co. (Mo. App.), 279 S.W. 246; American Ins. Co. v. Barnett, 73 Mo. 364; Reithmueller v. Fire Ass'n of Philadelphia, 20 Mo.App. 246. (3) Since court has adjudged insurance policy to be void from its inception, plaintiff cannot have garnishment judgment against respondents as garnishee. Giacomo v. State Farm. Mut. Automobile Ins. Co., 203 Minn. 185, 280 N.W. 653; Zabonick v. Ralston, 272 Mich. 247, 261 N.W. 316; Booker T. Washington Ins. Co. v. Roberts, 228 Ala. 206, 153 So. 409.

Anderson & Whittington for appellant.

(1) The motion for judgment on the pleadings should be denied where the pleadings present issues of fact. Baker v. Lamar (Mo.), 140 S.W.2d 31; Graff v. Continental Auto Ins., 225 Mo.App. 85, 35 S.W.2d 926; Sullivan v. Bank of Harrisonville (Mo.), 293 S.W. 129; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396. (2) The decree cancelling the policy may be collaterally attacked for fraud in its procurement by one not a party to the cancellation suit. State ex rel. Van Hafften v. Ellison, 285 Mo. 301, 226 S.W. 559; Callahan v. Griswold, 9 Mo. 457; Myers v. Miller, 55 Mo.App. 338. (3) Defendant's right to indemnity, and consequently, plaintiff's right to look to the proceeds of the policy, accrued when the accident for which defendant was liable occurred. Century Realty Co. v. Frankfort Marine Acc. Co., 179 Mo.App. 123, 161 S.W. 624; Klotzbach v. Bull Dog Auto Fire Ins. Co. (Mo. App.), 267 S.W. 39. (4) An insurance company entering upon the defense of a lawsuit, out of which may develop a liability under the policy of indemnity, waives any right to deny liability under the policy and is estopped to set up want of liability as a defense. Fairbanks Canning Co. v. London Guaranty & Accident Co., 154 Mo.App. 327, 133 S.W. 664; Royle Mining Co. v. Fidelity Co., 126 Mo.App. 104, 103 S.W. 1098; National Battery Co. v. Standard Accident Co., 226 Mo.App. 351, 41 S.W.2d 599; Graff v. Continental Auto Ins., 225 Mo.App. 85, 35 S.W.2d 926; Cowell v. Employers Indemnity, 326 Mo. 1103, 34 S.W.2d 705; Royle Mining Co. v. Fidelity Co., 161 Mo.App. 185, 142 S.W. 438.

ANDERSON, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON, J.

--This is a proceeding by garnishment under an execution upon a judgment rendered in favor of the appellant, Emma Hocken, and against Ernest L. Neef. Garnishees (respondents herein) are the Allstate Insurance Company, a corporation, and Allstate Fire Insurance Company, a corporation. Originally there were two separate garnishment suits, one against each of the above named garnishees, but these suits were, prior to trial, consolidated. The appeal is from a judgment of dismissal, after the trial court had sustained garnishees' motion for judgment on the pleadings, so that the question presented to this court on this appeal is whether plaintiff's denial of garnishee's answer (respondents throughout the pleadings are referred to in the singular) states facts sufficient to constitute a cause of action. Said pleading, after denying generally the allegations of garnishee's answer to plaintiff's interrogatories, and alleging the corporate capacity of the garnishees, alleged that on the 5th day of October, 1935, the garnishee issued to defendant its policy of insurance, under the terms and conditions of which the said garnishee agreed to pay on behalf of said defendant all sums within the limit of $ 5000 for injuries to one person and $ 10,000 for injuries to two or more persons in any one accident, which said defendant should, after the date of the issuance of said policy, become obligated to pay by reason of the liability imposed on him by law for damages because of bodily injury accidentally sustained by any person or persons as the result of the ownership, maintenance, or use of the automobile mentioned and described in said policy. There then follows a description of the said automobile.

It is then alleged that on or about the 22nd day of December, 1935, while said policy was in force, the plaintiff was riding as a passenger in the said automobile owned and operated by the defendant along and upon Castleman Avenue, within the City of St. Louis, Missouri; that she had no control over said car, but was riding as a guest and invitee of the defendant; that at said time defendant so carelessly and negligently operated said automobile as to cause and permit the same to run off the paving and over the curbing of said street and to strike violently against a tree, as a result of which plaintiff was seriously and permanently injured.

Said pleading further alleged that as a direct and proximate result of the carelessness and negligence of the defendant, plaintiff suffered various personal injuries, which are set out in said pleading.

Said denial then continued as follows:

"Further denying, plaintiff states that thereafter she made claim against said Ernest L. Neef for damages for said personal injuries; that thereafter plaintiff, through her counsel, was informed by Mr. Niel Wood that he represented the Allstate Insurance Company and Allstate Fire Insurance Company; that thereafter the garnishee herein, by and through its agent and representative, the said Niel Wood, discussed with plaintiff her claim against said Ernest L. Neef with a view to settling said claim; that said garnishee, by and through its said agent and representative, assured plaintiff that it had under consideration a settlement of said claim, and that in furtherance of said settlement, at the request of the garnishee, this plaintiff submitted to medical examination and to having X-ray photographs of herself taken and submitted to said garnishee written statements signed by herself and by her husband setting out the particulars of the accident in which she was injured.

"Further denying, plaintiff states that thereafter, on the 13th day of May, 1936, plaintiff filed in the Circuit Court of the City of St. Louis, Missouri, her suit for damages for personal injuries aforesaid, wherein she set forth the facts and allegations of negligence as aforesaid, and prayed the Court to award her the sum of seven thousand five hundred dollars together with her costs therein expended, said cause being entitled Emma Hocken, plaintiff, v. Ernest L. Neef, defendant, and numbered 7066-C in said court; that summons was duly served on defendant returnable to the June Term, 1936, of said court.

"Further denying, plaintiff states that on the 3rd day of June, 1936, one Clark M. Clifford, an attorney at law in the employ of the garnishee herein, acting for said garnishee under the terms and conditions of the aforesaid policy of insurance, filed a demurrer to plaintiff's petition in said cause as attorney for defendant; that thereafter the said demurrer so filed was by the Court overruled on July 3, 1936.

"Further denying, plaintiff states that on the 9th day of July, 1936, the said Clark M. Clifford, employed by garnishee and acting on its behalf as aforesaid, filed an answer in said cause as attorney for said defendant.

"Further denying, plaintiff states that the said Clark M. Clifford was never employed by the defendant, but in truth and in fact was the representative of the garnishee herein and undertook the defense of said cause by reason and as a result of the issuance of the policy of insurance as aforesaid.

"Further denying, plaintiff states that thereafter, on the 9th day of September, 1936, the said Clark M. Clifford withdrew from said cause as attorney for said defendant.

"Further denying, plaintiff states that thereafter, on the 12th day of November, 1936, the cause being duly called for trial plaintiff having announced ready for trial and being then and there ready...