Johnson v. Great Heritage Life Ins. Co., 34434

Citation490 S.W.2d 686
Decision Date23 January 1973
Docket NumberNo. 34434,34434
PartiesDonna JOHNSON, Administratrix of the Estate of Samuel C. Cresswell, Deceased, Plaintiff-Appellant, and William Johnson, Plaintiff, v. GREAT HERITAGE LIFE INSURANCE CO., a corporation, Defendant-Respondent, and DeVille Motors, Inc., Defendant. . Louis District, Division Two
CourtCourt of Appeal of Missouri (US)

John A. Schneider, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for plaintiff-appellant.

Gordon G. Hartweger, Guilfoil, Symington & Petzall, St. Louis, for defendant-respondent Great Heritage Life Ins. Co.

H. Jackson Daniel, Clayton, for defendant DeVille Motors, Inc.

KELLY, Judge.

The question presented in this appeal is whether the plaintiff-appellant. Donna Johnson, hereinafter referred to as appellant, in her petition stated a claim upon which relief can be granted against the defendant-respondent, hereinafter referred to as the respondent.

Appellant has filed a total of three amended petitions in the trial court and takes this appeal from the judgment of the trial court dismissing amended Court I of appellant's petition on the grounds that it fails to state a claim upon which relief could be granted. The trial court, in its order sustaining respondent's motion, also provided that 'Order of Dismissal shall be deemed a final separate judgment for purposes of appeal.'

The issue has not been raised by either party in their briefs, but respondent's counsel in the presentation of his argument did question whether or not this was an appealable order. We are duty bound to determine whether or not a final, appealable judgment has been entered in this case. Rakestraw v. Norris, Mo.App., 469 S.W.2d 759, 761(1); Dudeck v. Ellis, Mo., 376 S.W.2d 197, 204(1); Pizzo v. Pizzo, 365 Mo. 1224, 1227, 295 S.W.2d 377, 379(1).

The general rule is that to be final and appealable, a judgment must dispose of all parties and all issues in the case and leave nothing for future determination, unless the trial court has ordered a separate trial of any claim or issue, or has specifically designated the particular judgment as a final judgment for the purposes of appeal. State ex rel. Schweitzer v. Greene, Mo., 438 S.W.2d 229, 231(3).

Donna Johnson, administratrix of the estate of Samuel E. Cresswell, her late father, and William Johnson jointly filed a petition in two counts. In Count I, the only Count with which we are here directly concerned, is one wherein the plaintiff brought suit against the Great Heritage Life Insurance Company alleging that on or about the 30th day of September, 1969, the decedent, Samuel C. Cresswell, purchased a 1964 Monitor Mandalay 24 trailer from the DeVille Motors, Inc. for a time balance price of $4,757.20 and as part of said transaction also paid to the seller $217.86 for transmission to the Great Heritage Insurance Company for credit life insurance to pay any unpaid balance due on the trailer at the time of his death; that she 'verily believes' that a policy of insurance was issued by the defendant, being No. CA 40677, at the request of DeVille Motors, Inc., in consideration of the premium paid by the deceased, whereby the respondent agreed to pay the holder of the indebtedness against the trailer at the death of decedent the balance unpaid on the said indebtedness, to-wit: $4,357.20. Appellant further pleaded that the decedent 'became the third-party beneficiary of the' insurance contract, and her cause of action is based upon the policy of insurance 'purported to have been issued by the defendant Great Heritage Life Insurance Co. to DeVille Motors, Inc. or to Samuel C. Cresswell.' That if DeVille Motors, Inc. has or claims any interest in the policy of insurance it has failed and refused to assert the claim for the benefit of the appellant and against the insurance company. She then alleges that the insurance company has wrongfully and vexatiously refused to pay the life insurance and asks for judgment against the insurance company for $4,357.20 with interest from the 23rd day of October, 1969,--the day Mr. Cresswell died--ten percent (10%) as damages for vexatious refusal to pay, and reasonable attorney fees in the amount of $2,500.00.

Count II of the petition, which is germane here only because of our ruling on the question of whether the case is properly before this court on appeal, alleges that the sole plaintiff in that count, William Johnson, adopts all of the allegations of Count I against 'the defendant DeVille Motors, Inc.' and then further pleads that he, at the request of Mr. Cresswell and the insistence of the defendant DeVille Motors, Inc., co-signed the note given by Mr. Cresswell for the sale of the trailer thereby becoming liable thereon in the amount of $4,357.20; that he co-signed the note on the assurance and reliance that credit life insurance would be purchased and would not have co-signed the note but for said assurance; in the event the credit life insurance was not purchased by the defendant DeVille Motors, Inc., or was not issued, then defendant DeVille Motors, Inc. is liable to him in the amount of $4,357.20.

It is axiomatic that a judgment in order to be final and appealable must dispose of all parties and all issues in the cause, leaving nothing for future determination. See many cases cited in 2 Missouri Digest, Appeal and Error, Key Nos. 76(1), 79(1) and 80(1). In the absence of specific statutory authority, appeals do not lie from rulings which do not constitute a final disposition of the cause, for the reason that cases are not to be brought to the appellate courts in piecemeal fashion or detached portions. Orf v. Computer Institute, Inc., Mo.App., 480 S.W.2d 73, 74(1). The finality of judgments for the purposes of appeal must be determined by the situation as it exists in the trial court at the time the appeal is sought and not by what may or may not thereafter occur in the appellate court. Ramatowski v. Ramatowski, Mo.App., 414 S.W.2d 827, 829(4). What is or is not a final judgment so as to be appealable depends upon the circumstances of each individual case. Clasen v. Moore Brothers Realty Company, Inc., Mo.App.,413 S.W.2d 592, 597(2).

The trial court saw fit to make its order of dismissal a 'final separate Judgment for purposes of appeal.' Objections of failure to state a claim upon which relief can be granted may be raised by motions to dismiss when the basis for the objection appears on the face of the pleadings. Rule 55.33 V.A.M.R. Any involuntary dismissal other than for lack of jurisdiction, for prematurity of action or for improper venue shall be with prejudice unless the court in its order of dismissal shall otherwise specify. Rule 67.03 V.A.M.R. It is clear from this Rule and the order of the court dismissing appellant's Count I--wherein Donna Johnson, Administratrix is the only plaintiff and the only defendant is Great Heritage Life Insurance Co.--that it was the intention of the trial court to make this an appealable judgment.

We find authority for such action in Title Insurance Corporation of St. Louis v. United States, Mo.App., 432 S.W.2d 787, a case involving the foreclosure of deeds of trust in which the respective rights of holders of the deeds of trust and the United States, as the holder of a tax lien on the same property were in issue. Title Insurance Company moved for summary judgment claiming priority over the other claimants; the United States, by countermotion, agreed that there was no dispute on the facts and the only question for determination was one of law. The trial court sustained plaintiff's motion for summary judgment and specifically designated its order a final judgment for the purposes of appeal; the appeal followed, and the respondent--the plaintiff in the trial court--moved to dismiss the appeal on the ground that it was an appeal from an interlocutory order which had not disposed...

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