Lajoie v. Central West Casualty Co.

• Decision Date: 02 April 1934
• Docket Number: No. 17942.,17942.
• Citation: 71 S.W.2d 803
• Parties: LAJOIE v. CENTRAL WEST CASUALTY CO. OF DETROIT, MICH.
• Court: Missouri Court of Appeals

71 S.W.2d 803

LAJOIE v. CENTRAL WEST CASUALTY CO. OF DETROIT, MICH.

No. 17942.

Kansas City Court of Appeals. Missouri.

April 2, 1934.

Rehearing Denied April 30, 1934.

Appeal from Circuit Court, Caldwell County.

Proceeding by Pearl Lajoie against the Central West Casualty Company of Detroit, Mich., garnishee of Tony Rossi. From a judgment for plaintiff, defendant appeals.

Affirmed on condition that remittitur be filed, otherwise reversed and remanded for a new trial.

Landis & Landis, of St. Joseph, for appellant.

A. J. Bielby, Melvin J. Duvall, and W. J. Boyd, all of St. Joseph, for respondent.

REYNOLDS, Commissioner.

This is a proceeding by garnishment under execution upon a judgment rendered in favor of Pearl Lajoie and against Tony Rossi in the circuit court of Buchanan county, March 10, 1930, for the sum of $8,700, in an action wherein the respondent herein, Pearl Lajoie, was plaintiff and Mike Rossi and Tony Rossi were defendants. The garnishee, the appellant herein, is the garnishee of said defendant Tony Rossi and is now, and was at the time said judgment was rendered and at all times since, an insurance company engaged in liability or indemnity insurance in the state of Missouri, for which it was duly authorized.

On the ____ day of August, 1931, Pearl Lajoie, respondent herein, caused to have issued by the circuit clerk of Buchanan county an execution upon the judgment had by her against the said Tony Rossi, and caused the appellant herein, the Central West Casualty Company of Detroit, Mich., to be summoned as garnishee of said Tony Rossi and to answer plaintiff's interrogatories. On the 6th day of October, 1931, thereafter, plaintiff filed its interrogatories to said garnishment in the circuit court of Buchanan county, aforesaid, in the manner and form and within the time provided by law, touching its indebtedness to the said Tony Rossi, the defendant in said execution, at the time of the service of the garnishment or since such service or now, and touching any contract by which, at the time of the service of the garnishment or since then or now, it was bound to said defendant in said execution to pay him any money now or yet to become due and also respecting its custody or control of any money or properties, credits, or effects belonging to defendant at such times.

Thereafter, on the 10th day of October, 1931, the appellant herein, as garnishee, filed in said Buchanan county circuit court its verified answer to said interrogatories, by which it denied that it was, at the time the garnishment was served upon it, bound by any contract to pay said defendant Tony Rossi any money now due or to become due and that it had not, since said garnishment was served upon it or now, become so bound and denied that, at the time of the service of the garnishment, it had in its possession, control, or custody any money or other property, credits, or effects belonging to said defendant, or that, now or since said garnishment, it has or has had possession, care, or custody of any such for said defendant, and denied that it is now or was or had been, at any of such times, indebted to said defendant Tony Rossi.

Thereafter, on the 15th day of October, 1931, the plaintiff filed her denial of said garnishee's answer to said interrogatories, alleging therein the corporate capacity of garnishee, and that it was duly organized as such corporation and was lawfully engaged in the insurance business in Missouri and tendering first a general denial to said answer which was followed by a further denial setting up, among other things, that, at the time of the service of the writ of garnishment upon the garnishee, to wit, on the ____ day of August, 1931, garnishee was indebted to Tony Rossi, the defendant and judgment debtor herein, in the sum of $8,700, with interest thereon at the rate of 6 per cent. per annum from the 10th day of March, 1930, and for the sum of $60 court costs assessed in a certain damage suit wherein she, the respondent herein, was plaintiff therein against one Mike Rossi and the said Tony Rossi and wherein she had recovered judgment against the said Tony Rossi for the sum of $8,700, with interest and costs for damages for injuries occasioned her by the said Tony Rossi while legally operating a certain motorcar described in a certain policy of insurance No. 12420744 which had been issued and delivered by garnishee at St. Joseph, Mo., about the 28th day of March, 1929, to one Mike Rossi as the named assured therein, and for costs of said suit, by which said policy, and by the various provisions thereof and of the indorsements thereon or attached thereto, it insured, not only the said named assured against liability for loss incurred on account of damages for injuries occasioned to other persons in the operation of said motorcar, so described therein, as a result of the ownership, maintenance, or use thereof, but also the defendant Tony Rossi, as one of the assured thereunder when riding in or legally operating said car with the permission of the said Mike Rossi, against liability for loss incurred on account of damages for injuries occasioned to other persons in the use and operation of said car, and by further reason of the fact that said Tony Rossi had, while legally using and operating said car with the permission of said Mike Rossi, the named assured, incurred liability for loss on account of damages for injuries occasioned the plaintiff in colliding said car with another car in which she was at the time seated, for which injuries she had obtained judgment aforesaid against him in the sum of $8,700 and for the payment of which sum to the said Tony Rossi the liability of the garnishee had become fixed and final as his debtor.

It was further alleged in said denial that the garnishee had breached the terms of said contract in failing to attempt to adjust and settle plaintiff's claim against him in said suit, in which she obtained the judgment aforesaid, and in failing to appear for him and defend him in said suit, and that, by reason thereof, it had become liable to him.

It further alleged the insolvency of the defendant Tony Rossi.

It further set out the various provisions of said policy of insurance, upon the proper construction of which this controversy might depend, together with plaintiff's theory of such construction to be given and the effect of such provisions to follow therefrom with respect to the determination of the matters involved.

Thereafter, on the 27th day of November, 1931, garnishee filed its motion to quash the writ of garnishment and all proceedings against garnishee thereunder, which, on the 14th day of March thereafter, was by the court overruled. Thereupon, on the 14th day of March, 1932, garnishee filed a demurrer to plaintiff's denial which was, upon the same date, considered and overruled by the court. Thereafter, on the 6th day of June, 1932, the cause was ordered transferred to the circuit court of Caldwell county upon garnishee's application for a change of venue; and, thereafter, on the 28th day of June, 1932, in the circuit court of Caldwell county, the garnishee filed an amended reply to plaintiff's denial of its answer to plaintiff's interrogatories, which amended reply denied generally each and every allegation in said denial contained. Garnishee, by said amended reply, admitted its corporate capacity, and alleged that it was engaged in the indemnity and casualty insurance business in Missouri and elsewhere and, in effect, admitted the issuance by it of a certain policy of insurance No. 12420744 of date March 28, 1928, to one Mike Rossi, but alleged that it insured him (the said Mike Rossi) only against liability for loss imposed by law upon on him arising out of the ownership, maintenance, and use of a certain Ford coupé model 1927 motorcar, motor No. 14695902, for a period of one year, and that said policy also extended only for the benefit of other persons legally operating such car with the permission of the said Mike Rossi and only when operating with such permission, and that, by a rider attached to said policy of date June 6, 1929, said policy ceased to cover said Ford coupé model 1927 and was thereafter made to cover liability of the said Mike Rossi for damages as a result of the ownership, maintenance, and use by him of a certain Ford roadster, car model A 1929, motor No. A-1636957, and also the liability of other persons legally operating said car with his permission, and that all other terms, conditions, agreements, and limitations of said policy remained in full force as originally provided and were in no wise varied, waived, or extended by said rider. Such amended reply, further, in effect, denied that, at the time of the injuries to plaintiff by the defendant Tony Rossi in the operation of the Ford roadster model A 1929, the said Mike Rossi was the owner of said car and that the said Tony Rossi was operating it with the permission of said Mike Rossi within the contemplation of said policy, but alleged that, at such time, said Tony Rossi was the owner of said car and was operating the same as such in his own right and that he was not operating the same while upon an errand for the said Mike Rossi or upon business for him or while in his service and that therefore the liability for loss incurred by the said Tony Rossi for damages on account of the injuries to the plaintiff by his operation of said car was not a matter insured against by the policy in question and such liability on the part of the said Tony Rossi is and was not covered by said policy and that the garnishee is not, by reason thereof, in any wise indebted to said Tony Rossi for the payment of any money or, in any manner, thereby bound to him for the payment of money and that, in no event, could the liability of the garnishee, under the policy issued, be in excess of the sum of $5,000 and interest and cost of suit.

Such amended reply further set up that the said Tony Rossi was in...