Knight v. Calvert Fire Ins. Co., 43328

• Decision Date: 14 September 1953
• Docket Number: No. 43328,No. 1,43328,1
• Citation: 260 S.W.2d 673
• Parties: KNIGHT v. CALVERT FIRE INS. CO
• Court: Missouri Supreme Court

Page 673

260 S.W.2d 673

KNIGHT v. CALVERT FIRE INS. CO.

No. 43328.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1953.

J. Grant Frye, Cape Girardeau, for appellant.

Robert G. Brady, Cape Girardeau, for respondent.

LOZIER, Commissioner.

Suit upon an automobile collision insurance policy. Plaintiff pleaded: Issuance of the policy; $116.56 damage to plaintiff's parked automobile by an automobile owned by George Hamilton and operated by his son on June 2, 1951; plaintiff's performance of his obligations under the policy, including furnishing defendant proof of loss; defendant's vexatious refusal, on June 12, 1951, and thereafter, to pay plaintiff $66.56 (the amount of the damages over and obove $50 deductible); defendant's repudiation, on June 12, 1951, of all liability; and defendant's refusal to refund plaintiff the unearned premium. Plaintiff asked judgment for $66.56 collision damage and $2.41 interest thereon, $67.27 unearned premium and $2.36 interest thereon, $100 attorney's fee, 'and $13.86 vexatious refusal to pay fee.'

Defendant answered but, with leave of court, withdrew its answer and filed a motion to dismiss the petition 'for the reason that plaintiff has no cause of action against defendant.' In the motion, defendant admitted issuance of the policy, the collision, and that plaintiff's automobile had been damaged. Defendant then alleged that: Defendant's adjuster called upon plaintiff and 'made repeated efforts to get him to settle for the amount of the damage subject to the terms of said policy, that plaintiff refused and has always refused to settle with defendant stating that he preferred to recover the amount of damage from Mr. Hamilton'; on December 4, 1951 (the same day plaintiff filed the instant suit in the Cape Girardeau Court of Common Pleas) plaintiff sued Hamilton in the Circuit Court of Scott County for the damages to his car and for loss of its use; on January 2, 1951, plaintiff dismissed, with prejudice and at Hamilton's cost, said suit; in so doing, and in refusing to settle with defendant, plaintiff deprived defendant of its policy-provided-for subrogation rights and 'thereby in law waived any right to make a claim under the policy and is estopped from making any such claim.'

Plaintiff's counsel orally moved to strike the motion on the ground that defendant's objections or defense made therein could not be made by a motion to dismiss; that such objections and matters were not authorized by Section 509.290 RSMo 1949, V.A.M.S. (providing that ten specified objections 'and other matters may be raised by motion whether or not the same may appear from the pleadings and other papers filed in the cause'); that Section 509.400 RSMo 1949, V.A.M.S. (requiring that all 'defenses and objections for which there is no provision for the raising of the same by motion shall be raised in the responsive pleading if one is permitted'), required that defendant raise its defense by answer; and that the matters set forth in the motion to dismiss, considered 'either on motion or in an answer as some bar or abatement' were, as a matter of law, insufficient to constitute a defense. Plaintiff further objected 'that to hear evidence on the motion is a hearing on the merits of the cause and would deprive plaintiff of a trial by jury as guaranteed to him under Section 22 of Article I of the Constitution of Missouri [V.A.M.S.].'

The trial court overruled plaintiff's objections and heard defendant's evidence in support of the motion to dismiss. (Plaintiff offered no evidence.) Thereafter, the trial court sustained the motion because: 'It appears to the court from the documentary evidence that plaintiff elected to make recovery for his damages from the tortfeasor and not from defendant insurance company, and by so doing plaintiff, under court decisions, foreclosed his right of further action against defendant.' Plaintiff refused to plead further and his petition was dismissed. From the ensuing judgment, plaintiff has appealed to this court.

Defendant does not question our appellate jurisdiction. However, we must determine, from the record, whether or not we do have jurisdiction. Ingle v. City of Fulton, Mo., 260 S.W.2d 666.

Under Sec. 3, Art. V, Mo.Const., 2 V.A.M.S. p. 31, this court has 'exclusive appellate jurisdiction in all cases involving the construction of the Constitution of * * * this state'. In his brief, plaintiff merely states that jurisdiction is here because he 'raised the question in the trial court that he was being deprived of 'a trial by jury as guaranteed him under Section 22 of Article I of the Constitution of Missouri.'' The second of plaintiff's 'Points and Authorities' is: 'Appellant was entitled to a jury trial on the issue of release of respondent on account of appellant having settled his damage case with Hamilton; and the procedure adopted by the trial court in hearing...