Landau v. Fred Schmitt Contracting Co.

• Decision Date: 04 April 1944
• Parties: B. Sherman Landau, Appellant, v. Fred Schmitt Contracting Company, a Corporation
• Court: Missouri Court of Appeals

179 S.W.2d 138

237 Mo.App. 908

B. Sherman Landau, Appellant, v. Fred Schmitt Contracting Company, a Corporation

Court of Appeals of Missouri, St. Louis District

April 4, 1944

Respondent's Motion for Rehearing Overruled April 21 1944.

Appeal from the Circuit Court of St. Louis County; Hon. E. McDonald Stevens, Special Judge.

Reversed and remanded.

Walter Wehrle and Willson, Cunningham & McClellan for appellant.

(1) Money collected from insurance companies by an insured owner of property damaged by the wrongful act of a third person does not inure to the benefit of such tort-feasor, nor lessen his liability in any respect. Matthews v. St. Louis & San Francisco Ry. Co., 121 Mo. 298; Matthews v. Mo. Pac Ry. Co., 142 Mo. 645; Erhart v. R. R., 136 Mo.App. 617; Swift & Co. v. Wabash R. R. Co., 149 Mo.App. 526. (2) The courts have universally recognized that juries are prejudiced against the rights of a party by proof that his rights and liabilities will be shared by an insurance company, and have not hesitated to reverse a case where reference to insurance was deliberately injected into the case for the purpose of prejudicing the jury. Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Robinson v. McVay (Mo. App.), 44 S.W.2d 238; Nolen v. Halpin-Dwyer Const. Co., 225 Mo.App. 224, 29 S.W.2d 215; Page v. Underreiner (Mo. App.), 106 S.W.2d 528. (3) In the jury trial of this suit to recover damages wrongfully caused to plaintiff's building by defendant's blasting operations, it was highly prejudicial and incompetent for defendant to show that plaintiff was protected by explosion insurance policies covering part of the damage claimed. Bliss v. Moore (Vt.), 22 A.2d 315; Theurer v. Holland Furnace Co., 124 F.2d 494; Brody v. Cooper (R. I.), 124 A. 2. (4) The fact that plaintiff effected settlement with his insurers whereby they advanced to him about half of his damages as a loan, repayable only out of half of the net proceeds of his recovery in his suit against the defendant, does not constitute an assignment to the insurance companies of plaintiff's cause of action against the defendant tort-feasor. Luckenbach et al. v. McCahan Sugar Refining Co., 248 U.S. 139; Dixey v. Federal Compress & Warehouse Co. (8 Cir.), 132 F.2d 275; The Turret Crown, 297 F. 766; The J. L. Luchenbach, 65 F.2d 570; Eber Bros. Wine & Liquor Corp. v. Firemen's Ins. Co., 30 F.Supp. 412; Cotton Co-op. Asso. v. Yazoo, etc., Ry. Co. (Miss.), 197 So. 828; Automobile Ins. Co. v. Eastern Mchy. Co. (Ohio), 25 N.E.2d 954; Automatic Sprinkler Corp. v. Lbr. Co., 147 La. 542; McCann v. Dixie Lake & Ry. Co. (Ga.), 162 S.E. 869; Shiman Bros. & Co., Inc., v. Nebr. Natl. Hotel (Nebr.), 9 N.W.2d 807; Annotations, 1 A. L. R. 1528; 132 A. L. R. 607; Ormsby v. A. B. C. Fireproof Warehouse Co., 214 Mo.App. 336, 253 S.W. 491; First Nat. Bk. v. Produce Exch. Bank, 338 Mo. 91, 89 S.W.2d 33; Jones v. Cook (Mo. App.), 249 S.W. 422; Keeley v. Indemnity Co. of America (Mo. App.), 7 S.W.2d 434; Cova v. Bankers & Shippers Ins. Co. (Mo. App.), 100 S.W.2d 23. (a) There can be no valid conveyance in the nature of a partial assignment in the State of Missouri. Sexton v. Anderson Elec. Car Co. (Mo. App.), 234 S.W. 358; Swift & Co. v. R. R., 149 Mo.App. 526, 131 S.W. 124. (5) It was an abuse of discretion for the trial court to refuse plaintiff's motion for a separate trial of the issue of alleged assignment where such issue involved matters which, if not established, would have the effect of prejudicing and destroying plaintiff's chance of having a fair trial of the remaining issues. Sec. 1102, R. S. Mo. 1939; Matthews v. Ry. Co., 121 Mo. 337; Beck v. R. R., 129 Mo.App. 7; Evans v. Trenton, 112 Mo. 390, 20 S.W. 614; Haynes v. Trenton, 108 Mo. 123; Dorell v. Sparks, 142 Mo.App. 460; State ex rel. v. Camren, 226 Mo.App. 100, 41 S.W.2d 902; Williams v. Columbia Taxicab Company (Mo. App.), 241 S.W. 970; Sexton v. Anderson Elec. Car Co. (Mo. App.), 234 S.W. 358. (6) The fact that the court at a prior term had erroneously refused plaintiff's motion for a separate trial of the alleged defense of assignment did not operate as a legal bar to a correction of such error at the trial, and the trial court erred in refusing to exclude defendant's prejudicial evidence of insurance solely on the theory it was bound by the ruling made at such prior term. Leavenworth v. Atchison, 137 Mo. 218; State ex rel. A. Fire Ins. Co. v. Sevier, 335 Mo. 269, 73 S.W.2d 361; Reed Bros. v. Nicholson, 93 Mo.App. 29. (a) The exercise of a judicial discretion by the trial court, acting under a mistake as to a controlling rule of law, robs the litigant of the right to have the court exercise a sound judicial discretion. Middleton v. K. C. Pub. Serv. Co., 348 Mo. 107, 152 S.W.2d 154; State ex rel. v. Camren et al., 226 Mo.App. 100, 4 S.W.2d 902; Herbert v. Hawley et al. (Mo. App.), 32 S.W.2d 1095.

Moser, Marsalek & Dearing for respondent.

(1) Whether plaintiff is the real party in interest involves questions of law and fact upon which there is ample room for difference of opinion. (a) The term "loan agreement" applied to plaintiff's Exhibit A is a misnomer, since the arrangement includes no loan. Defendant was not a party to it and was not precluded from contending that the real intention of the parties was not evpressed therein. Tomlinson v. Marshall, 208 Mo.App. 381, 236 S.W. 380; McKee v. City of St. Louis, 17 Mo. 184 190; Cordes v. Straszer, 8 Mo.App. 61, 63; Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158 S.W.2d 171; Slinkard v. Lamb Const. Co., 212 S.W. 61, affd. 286 Mo. (en banc) 623; McKim v. Metropolitan St. R. Co., 196 Mo.App. 544, 546, 196 S.W. 434; Berry v. Royster (Mo. App.), 232 S.W. 477, 479; Blue v. Supreme Camp (Mo. App.), 135 S.W.2d 373, 376; Holman v. Metropolitan L. Ins. Co., 231 Mo.App. 230, 233, 98 S.W.2d 343. (b) The agreement alone renders debatable the question of who was the real owner of the cause of action asserted. Yezek v. Delaware, L. & W. R. Co., 176 Misc. 553, 28 N.Y.S. (2d) 35; Purdy v. McGarity, 262 A.D. 623, 30 N.Y.S. (2d) 966; Arnold v. Kensington Plaza Garage, 179 Misc. 697, 42 N.Y.S. (2d) 118; Freeland v. Burdick et al., 200 Mo.App. 226, 228, 204 S.W. 1123; Bennett v. Ward, 272 Mo. 671, 680, 199 S.W. 945; Mechanics Bank v. Merchants Bank, 45 Mo. 513, 516; Carter v. Bolster, 122 Mo.App. 135, 141, 98 S.W. 105; St. Louis v. Hill, 116 Mo. 527, 533. (c) An assignment need not be in writing and, like any other fact, may be inferred from any act of the parties tending to show a transfer of interest from one to the other. City of Maplewood v. Johnson (Mo. App.), 273 S.W. 237, 239; O'Neal v. Viviano (Mo. App.), 105 S.W.2d 985; Wheless v. Meyer S. Gro. Co., 140 Mo.App. 572, 589, 120 S.W. 708; Smith v. Sterrett, 24 Mo. 260, 262. (d) It was defendant's privilege to convince the jury, if it could, that plaintiff had been paid in full by the insurance companies, and had transferred his entire claim to them. The nature of the arrangement disclosed by Exhibit A, that it was signed after defendant had challenged his right to maintain the suit, was signed by plaintiff alone and bore a misleading title, and that the attorney for the insurance companies appeared as attorney for plaintiff, were circumstances from which it could be found that the companies were the real parties in interest. Tomlinson v. Marshall, supra; Brenner v. Socony Vacuum Oil Co., supra. (e) Defendant had the right to a jury's verdict upon any theory of defense the evidence tended, directly or circumstantially, to support. King v. Wabash R. Co., 211 Mo. 1, 14-15, 109 S.W. 671, 673-4; Wilson v. Thompson, 345 Mo. 319, 324, 133 S.W.2d 331. (f) In determining whether defendant had probable grounds for asserting the defense, the facts should be viewed in the light most favorable to defendant's contention. Buesching v. St. Louis Gaslight Co., 73 Mo. 219; Moffett Bros. v. Kent (Mo.), 5 S.W.2d 395, 402; Poague v. Kurn, 346 Mo. 153, 161, 140 S.W.2d 13. (g) The mere fact that plaintiff's insurance was incidentally involved cannot be utilized to deprive defendant of its right to attempt to prove its defense. Steinman v. Brownfield (Mo. App.), 18 S.W.2d 528; Snyder v. Wagner Elec. Mfg. Co. (Mo.), 223 S.W. 911; Jablonski v. Modern Cap Mfg. Co., 312 Mo. 173, 200, 279 S.W. 89; Paepke v. Stadelman, 222 Mo.App. 346, 300 S.W. 845; Nixon v. Hill, 227 Mo.App. 312, 52 S.W.2d 208; Jones v. Mo. Freight Trans. Corp., 225 Mo.App. 1076, 1083, 40 S.W.2d 465; McPherson v. Premier Service Co. (Mo. App.), 38 S.W.2d 277, 279; Zein v. Pickel Stone Co. (Mo. App.), 273 S.W. 165, 166; Boten v. Sheffield Ice Co., 180 Mo.App. 96, 166 S.W. 883. (2) No error appears with respect to the trial court's ruling on plaintiff's motion for a separate trial of the defense that plaintiff was not the real party in interest. (a) Plaintiff had no absolute right to a separate trial of said issue. The ruling on the motion cannot be reviewed in the absence of a clear showing that the court abused its discretion. Authorities, Point 1, supra; also Osmak v. American C. & F. Co., 328 Mo. 159, 170-1, 40 S.W.2d 714; Smith v. Baer, 166 Mo. 392, 402, 66 S.W. 166; Stone v. Perkins, 217 Mo. 586, 606, 117 S.W. 771; Speer v. Burlingame, 61 Mo.App. 75, 78; Hunt v. Mo. R. Co., 14 Mo.App. 160; Little v. Harrington, 71 Mo. 391, 392; Reynolds v. Wargus, 240 Wis. 94, 2 N.W.2d 842, 845; G. A. Nichols Co. v. Lockhardt (Okla.), 129 P.2d 599, 603. (b) The course the trial took completely obviated the complaint made by plaintiff in his motion. Sec. 1228, R. S. Mo. 1939; Mills v. Thimmig (Mo. App.), 227 S.W. 616; Stoll v. First National Bank, 345 Mo. 582, 134 S.W.2d 97. (c) Upon appeal, all presumptions favor the correctness of the trial court's rulings. Graves v....