Home Indem. Co. v. Politte, WD

• Court: Missouri Court of Appeals
• Writing for the Court: TURNAGE
• Citation: Home Indem. Co. v. Politte, 602 S.W.2d 943 (Mo. App. 1980)
• Decision Date: 04 August 1980
• Docket Number: No. WD,WD
• Parties: HOME INDEMNITY COMPANY, Plaintiff-Appellant, v. Emmett L. POLITTE, Jim Ford, City of Columbia, Missouri, and Liberty Mutual Insurance Company, Defendants-Respondents. 31022.

Page 943

602 S.W.2d 943

HOME INDEMNITY COMPANY, Plaintiff-Appellant, v. Emmett L. POLITTE, Jim Ford, City of Columbia, Missouri, and Liberty Mutual Insurance Company, Defendants-Respondents.

No. WD 31022.

Missouri Court of Appeals, Western District.

Aug. 4, 1980.

Knight, Ford, Wright, Atwill & Parshall, Columbia, for plaintiff-appellant.

Butcher, Cline & Mallory, Cullen Cline, Columbia, for defendants-respondents.

Brown, Willbrand, Simon & Eng, B. Daniel Simon, Patrick J. Eng, Columbia, for Politte.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

TURNAGE, Presiding Judge.

Home Indemnity Company filed a declaratory judgment action against its policyholder Emmett L. Politte; Jim Ford, who had a claim against Politte; and the City of Columbia and Liberty Mutual Insurance Company, who have possible subrogation claims. The court entered a judgment adverse to Home and this appeal follows. Home contends the judgment is not supported by substantial evidence; was against the weight of the evidence; and was an erroneous application of the law to the facts. Affirmed.

Home issued a homeowner's policy to Politte. The policy afforded personal liability coverage for all sums which Politte would become legally obligated to pay as damages because of bodily injury caused to others, but contained an exception that the policy did not cover bodily injury or property damage which is either expected or intended from the standpoint of the insured.

In April, 1977, Politte became involved in an argument with another man at the Eastgate IGA Store in Columbia. The police were summoned and upon their arrival they placed Politte under arrest and put him in a police car to be taken to the police station. While he was in the back seat of the police car, handcuffed and alone, Politte got on his back and started kicking at the door and window frames of the car. He succeeded in pushing a part of the window frame outward. Politte admittedly had been drinking and was using foul language to the officers, but the evidence indicated he had not threatened bodily harm to any of the officers. Politte was arrested by Officers Kaiser and Brown with some assistance by Officer Thomas who arrived in another police car.

When the officers arrived at the police station with Politte he was forcibly taken into a room in the basement. The room was referred to as a locker room, a conference room and roll call room. The room had a table and chairs and also some lockers for the use of officers. While Politte was in the room he continued his foul language and his loud demands that he be released. There was evidence that he was kicking at chairs in addition to his loud talk and refused to stay in a chair unless he was pushed down. After Politte was taken into the conference room, Officer Jim Ford of the Columbia Police Department heard the noise and entered the room to see if he could be of assistance. Politte's loud and foul talk continued after Officer Ford entered and it was decided that Politte should be taken upstairs and placed in a cell. A group of officers, consisting of Kaiser, Brown, Thomas and Ford, began trying to take Politte upstairs. According to the testimony of Officers Kaiser, Thomas and Ford, Politte was very belligerent and did not want to go upstairs. As the group started on the trip upstairs, Officers Kaiser and Thomas were ahead of Politte and Ford and Brown were behind him. Ford was the officer immediately behind Politte and all of the testimony indicated that Politte would move a few feet but then stop, at which time it was necessary for Ford to push and shove Politte in order to get him moving again. Ford stated that he did this by pushing on the upper part of Politte's body.

A portion of Ford's deposition was read in evidence, although Ford himself did not testify. In his deposition testimony, Ford stated that he had pushed Politte several times to keep him moving when Politte suddenly raised his right foot and kicked backward in the direction of Ford. Ford stated that the heel of Politte's shoe struck him in the knee, his knee buckled and he almost fell down from the blow. The knee later caused him sufficient difficulty that he had to seek medical advice and eventually had to undergo an operation on the knee.

Officer Kaiser testified that he led the way as the group left the conference room and was aware that Ford was pushing Politte to keep him moving. He said at one point he heard hollering and apparently was far enough ahead of the group that he had to return a short distance to rejoin the group. When he returned he saw Politte lying on the floor with Ford and Brown standing next to him. Kaiser said he did not hear anyone say anything about being struck or being injured. Kaiser did not recall what kind of shoes Politte was wearing.

Officer Thomas testified that he was ahead of Politte as the group started for the cell and he could only see Politte as he turned his head back toward the group behind him. He said at one time he saw Politte stop and kick toward Ford who was behind Politte. He did not see Politte's foot actually strike Ford and he did not hear any outcry from Ford nor did he hear anyone make any statement that they had been struck or injured. He did not testify to any partial collapse of Ford's leg. Officer Thomas stated that at one point the group behind him, including Ford and Politte, were in a big heap on the floor where they had apparently fallen in their efforts to prod Politte into a continuous motion. Officer Thomas further stated he did not hear Politte make any threats toward anyone.

Politte testified that he had consumed some liquor on that day but denied that he was intoxicated. He admitted that he was very unhappy at being arrested and admitted that he had used some strong language in demanding to know why he had been arrested and in requesting that he be released. He stated he had on a pair of Hush Puppies shoes at the time which had a sponge rubber crepe sole. Politte stated that as the group left the conference room, Ford was behind him pushing and shoving. Politte said at one point he and Ford and the other officers behind him all fell to the floor. He stated that at all times after he was placed in the police car his arms were handcuffed behind him. He said when he fell down, he fell face down and Ford grabbed the handcuffs and drug him along the floor and struck his head against a wall.

Politte unequivocally denied that he at any time ever kicked Ford and denied that he ever had any intent to injure Ford.

Ford, in his deposition, stated that Politte had called him at home after the incident in the police station and threatened to "get him" because of Ford's actions toward Politte.

Home introduced the original petition Ford had filed against Politte for the injury to his knee in which it was alleged that Politte had intentionally kicked and injured Ford. An amended petition was filed in which it was alleged that Politte negligently kicked and injured Ford.

Home filed its petition for declaratory judgment in which it alleged the issuance of its policy to Politte and provisions of...