Kurre v. American Indem. Co. of Galveston, Tex.

• Decision Date: 04 June 1929
• Citation: 17 S.W.2d 685,223 Mo.App. 406
• Parties: JOHN KURRE, RESPONDENT, v. AMERICAN INDEMNITY COMPANY, GALVESTON, TEXAS, GARNISHEE OF LIBERTY BOTTLING COMPANY, A CORPORATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

17 S.W.2d 685

223 Mo.App. 406

JOHN KURRE, RESPONDENT, v. AMERICAN INDEMNITY COMPANY, GALVESTON, TEXAS, GARNISHEE OF LIBERTY BOTTLING COMPANY, A CORPORATION, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

June 4, 1929

Appeal from the Circuit Court of the City of St. Louis.--Hon. M Hartmann, Judge.

AFFIRMED.

Judgment affirmed.

Wilbur C. Schwartz and Charles E. Morrow for American Indemnity Company, Garnishee, appellant.

(1) The return of the sheriff is insufficient to give the court jurisdiction. The service was upon the deputy superintendent of insurance and it does not state and it is not otherwise shown that the superintendent of Insurance was absent or any other fact which would permit service upon the Deputy. R. S 1919, secs. 6310. 6085. (2) The court erred in refusing the garnishee's declarations of law in the nature of a demurrer to the evidence because upon no theory of law under the evidence is plaintiff entitled to recover against the garnishee. (a) The court has no jurisdiction of the cause for the reason that the return of the sheriff is insufficient. (b) The contract and policy in evidence was issued in Missouri to a Missouri corporation to cover the operations of a truck then in Missouri and all the matters connected with it occurred in Missouri, and the contract is to be interpreted by the laws of Missouri then in force. Liebling v. Ins. Co., 276 Mo. 118; Tremain v Dyott, 161 Mo.App. 217; Hartman v. Railway Co., 39 Mo.App. 93; Johnson v. Gawtry, 83 Mo. 339; Thomson v. Insurance Co., 169 Mo. 12; Ruhe v. Buck, 124 Mo. 178. (c) The policy and contract is purely one of indemnity to indemnify the Liberty Bottling Company against loss by reason of liability imposed by law. It is not a policy of insurance. Most v. Bonding & Ins. Co., 196 S.W. 1064; Pickering v. Hartsock, 187 S.W. 819; Scraggs v. Milling Co., 206 Mo.App. 567; Dunham v. Casualty Co., 179 Mo.App. 558; Western Automobile Co. v. Trimble, 249 S.W. 902; Conqueror, etc., Co. v. Ins. Co., 152 Mo.App. 332; Realty Co. v. Insurance Co., 197 Mo.App. 123. (d) The evidence does not show that the truck which injured plaintiff was covered by the policy, or that it was operated by the Liberty Bottling Company. (3) Under the terms of the policy and contract, the garnishee had the right and it was its duty to defend the action in question against the Liberty Bottling Company, and there can be no estoppel or waiver for anything it did in that respect. Most v. Bonding & Ins. Co., 196 S.W. 1064. (a) A contract of insurance cannot be created by estoppel, nor can estoppel create a cause of action. McLain v. Mercantile Co., 237 S.W. 506; Berry v. Ins. Co., 203 Mo.App. 559. (4) The court erred in giving the declaration of law requested by plaintiff to the effect that under the law, the pleadings and the evidence, the garnishee was indebted to the Liberty Bottling Company. The instruction is mandatory and peremptory as to the ultimate fact to be found in the case which would render the garnishee liable and it precludes a consideration of the evidence and the weight of the evidence by the court. Such an instruction cannot be given in a case where the trial is to the court unless the same instruction should have been given if the case were tried before a jury. A. Jaicks Co. v. Schoellkopf, 220 S.W. 486; Eaton v. Cates, 175 S.W. 950; Cousins v. White, 246 Mo. 296; Cassett v. Ferrill, 209 Mo. 704; Bank v. Miller, 223 S.W. 908. (5) The court erred in refusing declaration of law number 8 to the effect that the policy and contract was one of indemnity and not one of insurance. See authorities under point 2 (c). (6) The court erred in refusing declaration of law number 1 to the effect that the garnishee did not waive the no-action clause of the policy by defending the suit. Most v. Bonding & Ins. Co., 196 S.W. 1064. (7) The court erred in refusing declaration of law number 2 that there was no evidence that the Liberty Bottling Company had paid any money in satisfaction of the judgment. Western Automobile Co. v. Trimble, 249 S.W. 902; Also see authorities under point 2 (c). (8) The court erred in refusing declaration of law number 3 that the Liberty Bottling Company had suffered no loss. See authorities under point 2 (c). (9) The court erred in refusing declaration of law number 4 that this proceeding is not an action brought by the Liberty Bottling Company against the garnishee for loss sustained by it and paid in money in satisfaction of a judgment. (10) The court erred in refusing declaration of law number 6 that there was no evidence that the garnishee had waived or was estopped from asserting the no-action clause of the policy. Most v. Bonding & Ins. Co., 196 S.W. 1064. (11) The court erred in refusing declaration of law number 7, that by refusing to have anything to do with the damage suit after judgment or to pay the judgment or to settle or compromise the same or appeal the case, the garnishee did not waive its right that the payment of the judgment in money by Liberty Bottling Company should be made before a cause of action accrued against it; nor waived the right to require an action to be brought by the Liberty Bottling Company itself, and was not estopped from invoking the stipulations of the policy in those respects. Most v. Bonding & Ins. Co., 196 S.W. 1064.

Alphonse E. Ganahl and James J. O'Donohoe for respondent.

(1) The trial court committed no error in giving plaintiff's requested declaration of law, for reasons, amongst which are: (1) Said declaration of law is not peremptory, but if considered such it was proper to have given it. A. Jaicks Co. v. Schoellkopf et al., 220 S.W. 486; Saucier v. Kremer, 297 Mo. 461; Heynbrock v. Hormann, 256 Mo. 21; Chaonia State Bank v. Sollars, 190 Mo.App. 284; Buck v. McMinn et al., 300 S.W. 497. (2) When plaintiff makes a primafacie case, whether by oral or documentary evidence, the burden is cast on defendant to plead and prove an affirmative defense, and failing to do so, if tried by jury, the trial court is bound to direct a verdict for plaintiff, and if tried by the court without a jury, the court should give a peremptory declaration of law for plaintiff. Renfro v. Ins. Co., 148 Mo.App. 258; Winn v. Modern Woodmen of America, 157 Mo.App. 1; Dezell v. Fidelity & Cas. Co., 176 Mo. 253; Hendley v. Globe Refining Co., 106 Mo.App. 20; Knisley v. Leathe 178 S.W. 453; Stewart v. Legion of Honor, 36 Mo.App. 319; May v. Crawford, 150 Mo. 504. (3) Where the evidence is such that reasonable minds cannot draw different conclusions therefrom the trial court should give a peremptory instruction or a peremptory declaration of law, as the case may be. Miller v. Dunham, 186 S.W. 29; Enterprise F. & C. O. I. Co. v. Stigall, 206 S.W. 390. (4) A judgment will not be reversed when the conclusion of the trial court is right, and an erroneous declaration of law will be disregarded. Amber v. Davis, 282 S.W. 459; Fairbanks-Morse Co. v. Stock Food Co., 151 Mo.App. 260; Robinson v. Rice, 20 Mo. 229; Baumhoff v. Ry. Co., 171 Mo. 120. (5) When right result is reached and judgment is for right party erroneous instructions or declarations of law are disregarded. Peterson v. Transit Co., 199 Mo. 331; Woody v. Railroad, 104 Mo.App. 678. (6) When the evidence is such that the trial court would be bound to set aside the verdict, or its own judgment, the court should direct the verdict or judgment, as the case may be. Irwin v. McDougal, 217 Mo.App. 645. (7) The court will not reverse a case where in no event can the other party recover. Locher v. N.Y. Life Ins. Co., 200 Mo.App. 659; Trainer v. Milling Co., 243 Mo. 359. (8) It is so well settled that where the evidence is all one way questions of fact cease to be such and become questions of law, neither, we think, discussion nor citation of authorities is necessary. (9) It is well stated that "it is a trite and familiar doctrine that a judgment may not be reversed except for error materially affecting the merits of the action, or, in other words, prejudicial to appellant's rights (section 1513, R. S. 1919)." (2) The questions of waiver and estoppel by appellant's action in defending the damage suit are well ruled and fully supported by an unbroken line of decisions in this State, as may be seen from the numerous Missouri cases cited on page 17 of the opinion filed. The same rule obtains in the sister States, as may be seen from the many cases cited by this court in Wehrhahn v. Fort Dearborn Casualty Underwriters of Chicago, Illinois (Mo. App.), 1 S.W.2d 242. The letter from American Indemnity Company, by Wilbur C. Schwartz, its attorney, to Liberty Bottling Company, is void because it fails to name the defense or defenses it seeks to reserve and nonwaive. Such general or catch-all reservations do not bar estoppel or waiver. They have been denounced by the courts as void both in prose and poetry. Shearlock v. Mutual Life Ins. Co., 193 Mo.App. 430; Carson v. Ins. Co., 113 Iowa 641; Marthinson v. Ins. Co., 64 Mich. 372; Ins. Co. v. Moriarty, 37 S.W. 628; Ins. Co. v. Evants, 25 Tex. Civ. App. 300; Ins. Co. v. Kennedy, 47 Neb. 138; Brock v. Ins. Co., 106 Iowa 30.

BENNICK, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is a garnishment proceeding in aid of an execution issued by the clerk of the circuit court of the city of St. Louis, pursuant to a judgment theretofore rendered in said court for the sum of $ 10,000, with costs amounting to $ 69.20, in favor of John Kurre, the plaintiff, and against Liberty Bottling Company, a corporation, the defendant, in an action for damages for personal injuries sustained by plaintiff when struck by an automobile truck owned and operated by the defendant. The execution was delivered to the sheriff of Cole county, who executed the same, so far as...