Julian v. Commercial Assurance Co.

• Decision Date: 08 January 1926
• Citation: 279 S.W. 740,220 Mo.App. 115
• Parties: B. F. JULIAN, DOING BUSINESS AS MARSHFIELD SUPPLY COMPANY, RESPONDENT, v. COMMERCIAL ASSURANCE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

279 S.W. 740

220 Mo.App. 115

B. F. JULIAN, DOING BUSINESS AS MARSHFIELD SUPPLY COMPANY, RESPONDENT, v. COMMERCIAL ASSURANCE COMPANY, APPELLANT.

Court of Appeals of Missouri, Springfield

January 8, 1926

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

AFFIRMED.

Judgment affirmed.

W. C Irwin of Jefferson City, and F. M. McDavid, of Springfield for appellant.

Plaintiff's original petition in Webster county, wherein suit was brought on the contract against these same defendants, and the petition having been adjudged insufficient as to this defendant, and the plaintiff having failed to amend, this defendant was entitled to a final judgment and discharge. Conn. Mutual Insurance Co. v. Smith, 117 Mo. 261, 296; Core v. Sipes, 280 Mo. 120-122; 21 Ruling Case Law, p. 529; 15 Ruling Case Law, p. 986; Land Mfg. Co. v. Realty Co., 205 Mo.App. 482; Greenebaum v. Elliott, 60 Mo. 25; Donnell v. Wright, 147 Mo. 639; Spratt v. Early, 199 Mo. 491. The filing of a petition alone against the Commercial Union Assurance Company and thereafter filing a subsequent amended petition whereby Davis & Robinson were made the substantial parties thereto, and wherein a different remedy was asked, was the abandonment of the original suit. Hall v. School District, 36 Mo.App. 21; Courtney v. Sheeley, 38 Mo.App. 290; Pratt v. Walther, 42 Mo.App. 491; Mineral Belt Bank v. Elkins Lead Co., 170 Mo. 224. The institution of a suit in the Webster County Circuit Court against Davis, Robinson and this defendant, on the same contract for canners supplies made between the plaintiff and Davis & Robinson, and the court having sustained a demurrer as to this defendant, and the plaintiff having proceeded to final judgment before a jury and obtained only a money judgment against Davis & Robinson, such judgment became final both as to parties and subject-matter, and plaintiff could not thereafter sue in equity on the same contract or seek a relief which he did not seek in that action. Land Mfg. Co. v. Realty Co., 205 Mo.App. 482; Greenebaum v. Elliott, 60 Mo. 25; Spratt v. Early, 199 Mo. 491; McLure v. Bank, 263 Mo. 128; City of St. Louis v. United Ry., 263 Mo. 425; Donnell v. Wright, 147 Mo. 647. The judgment rendered in the city of St. Louis against Davis & Robinson, and in favor of this appellant, on the policy of insurance here sued upon, is res adjudicata as to the right of any one thereunder. Young v. Byrd, 124 Mo. 598; Wager v. Ins. Co., 150 U.S. 99; Case v. Sipes, 280 Mo. 120; State ex rel. Patton, 271 Mo. 559; Leslie v. Carter, 268 Mo. 428; State ex rel. Mining Co., 262 Mo. 501; Spratt v. Early, 199 Mo. 500; Donnell v. Wright, 147 Mo. 647; Hartford Life Ins. Co. v. Ibs, 237 U.S. 673; Boas v. Branch, 208 S.W. 86. The eighth and eleventh clauses of the contract sued upon show conclusively that the insured was not the sole and unconditional owner of the property insured, and hence the policy was void in the hands of Davis & Robinson, and the plaintiff could have no greater rights than the insured themselves. "The contract for fire insurance is one of indemnity to the insured and does not extend to any other person or interest without language in or on the policy consenting to the same. The interest must be completely vested in the insured, not conditional, or contingent, nor for years, nor for life only, nor in common, but of such a nature that the insured must sustain the entire loss if the property is destroyed, and this is so whether the title is legal or equitable. Overton v. American Central Ins., 79 Mo.App. 1; Bernard v. National Ins. Co., 27 Mo.App. 26; Grigsby v. German Ins. Co., 40 Mo.App. 276; Cole v. Niagara Fire Ins., 134 S.W. 569; Daugherty v. German American, 67 Mo.App. 526; Ramer v. American Central, 70 Mo.App. 47.

Haymes & Dickey, of Springfield, and J. E. Haymes, of Marchfield, for respondent.

(1) The order of court sustaining defendant's motion to dismiss plaintiff's petition as to defendant Commercial Assurance Company, in the first suit brought against Davis & Robinson and Commercial Assurance Company, which suit was based on the contract for the purchase of canning factory supplies from plaintiff, by said Davis & Robinson was in effect merely a nonsuit and did not entitle defendant Commercial Assurance Company Ltd., to a final judgment and discharge, because: (a) The rule is that dismissal of a suit will not operate as a bar to a new action, unless there has been an examination and adjudication of the merits. Wells v. Moore, 49 Mo. 229; Bennett v. Southern Bank, 61 Mo.App. 297; Shanklin v. Wetzler, 67 Mo.App. 457; Swing v. Karges Furniture Co., 150 Mo.App. 574; Wilson v. Hartford Fire Ins. Co., 254 S.W. 266; Wing v. Cen.. Life Ins. Co., 167 Mo.App. 14. (b) Where it does not appear by the record upon whet grounds a bill was dismissed, whether upon the merits or upon some of the special causes of demurrer not involving the merits and no extrinsic evidence is furnished, showing the precise point involved and decided, the whole subject-matter is open to new contention. Chrisman v. Harman, 26 Am. Rep. 387; Laing v. Price, 83 S.E. 497; Kirsch v. Kirsch, 45 P. 164; Murphy v. Creath, 26 Mo.App. 586; Clemens v. Murphy, 40 Mo. 122; Wright v. Salisbury, 46 Mo. 26. (c) Where a demurrer goes both to defects of form and also the merits, a judgment thereon not designating between the two grounds will be presumed to rest on the former. Motes v. Gila Valley G. & N. R., 89 P. 410; Griffin v. Seymour, 83 Amer. Dec. 396; Goldsborough v. Hewitt, 99 P. 907. (2) The filing of the amended petition adding Davis & Robinson as parties defendant was not an abandonment of the original petition, but was such an amendment as was authorized by statute. Sec. 1274, R. S. 1919; State ex rel. Bank v. Bourne et al., 151 Mo.App. 104; Rippie v. Railroad, 154 Mo. 358. (3) The first suit instituted and tried in Webster County wherein defendant Commercial Assurance Company was at first made a party defendant but in which the petition on motion to dismiss was later dismissed as to said defendant was merely a suit on a contract for debt against Davis & Robinson in which a money judgment was obtained against them. This suit is not a suit on the same contract and is not a suit for debt, but is a suit in the nature of a creditor's bill wherein it is sought to collect the judgment already obtained by having an equitable lien declared in favor of the plaintiff on the proceeds of the insurance policy taken out by Davis & Robinson who are insolvent on goods which they had contracted to keep insured for the benefit of the plaintiff and on which plaintiff had a lien. Therefore--(a) The doctrine of res adjudicata does not apply for the same issues were not involved in the two suits. Scheurich v. Empire Dist. Elec. Co., 188 S.W. 114; Runnels v. Lasswell, 219 S.W. 980; Burnham, Munger & Co. v. Smith, 82 Mo.App. 35; Chapman v. Chapman, 269 Mo. 663. (b) There was no splitting of plaintiff's cause of action, but two entirely different suits, one for debt and one for collection of a judgment, by the establishment of an equitable lien. O'Malley v. Musick, 191 Mo.App. 405; Danciger et al. v. Amer. Express Co., 192 Mo.App. 106. (4) The judgment rendered in the city of St. Louis against Davis & Robinson and in favor of Commercial Assurance Company on the insurance policy involved in this suit was not res adjudicata as to the rights of this plaintiff. (a) Because said suit was filed in the city of St. Louis and judgment obtained after all parties thereto were notified of the rights of this plaintiff in the proceeds of said insurance policy (even after this present suit had been filed and summons served) and was fraudulently conceived and consummated for the sole purpose of preventing this plaintiff from securing any part of the proceeds of said policy to which they knew he was justly entitled. Cromwell v. The Brooklyn Fire Ins. Co., 44 N.Y. 42; Ellis v. Kreutzinger, 27 Mo. 311. (b) While a judgment of a court having jurisdiction of the parties and the subject-matter is conclusive as to the parties to the suit, said judgment can be collaterally attacked by a stranger to the proceeding. The plaintiff herein was a stranger to the suit filed in St. Louis. Callahan, Adm., v. Griswold, 9 Mo. 784, 792; Myers v. Miller, 55 Mo.App. 338; Russell v. Grant, 122 Mo. 161, 180; McIntire v. St. Louis and San Francisco R. R., 227 S.W. 1047; Abington v. Townsend, 271 Mo. 615. (5) While Davis & Robinson were not the sole and unconditional owners of the goods insured in the policy issued by defendant Commercial Assurance Company as they represented themselves to be, still the policy was not void: (a) Because the defendant Commercial Assurance Company was notified of plaintiff's interest in the insured goods before the fire and retained the insurance premium and did not cancel the policy. 3 Cooley's Brief on Insurance, page 2665; Pelkington et al. v. National Ins. Co., 55 Mo. 172; Cromwell v. Phoenix Ins. Co., 47 Mo.App. 109; Nute v. Hartford Fire Ins. Co., 109 Mo.App. 585; Gold Issue Mining and Milling Co. v. Penn. Fire Ins. Co., 267 Mo. 602, 604, 605. (b) Because the defendant Commercial Assurance Company was notified again of plaintiff's interest in the insured goods after the fire, but before Davis & Robinson had made their proofs of loss, but notwithstanding such notification, thereafter paid Davis & Robinson the sum of $ 1,000 on said policy. Pearman v. Farmers Mutual Fire Ins. Co., 214 S.W. 292; Hayden v. American Central Ins. Co., 221 S.W. 437.

BRADLEY, J. Cox, P. J., and Bailey J., concur.

OPINION

BRADLEY, J.--

This cause, in the nature of an equitable garnishment was filed in Webster county, but the venue was changed to Greene where trial was had resulting in a judgment in favor of plaintiff and the defendant ...