Linenschmidt v. Continental Casualty Co.
| Decision Date | 14 July 1947 |
| Docket Number | No. 40093.,40093. |
| Citation | 204 S.W.2d 295 |
| Parties | HENRY LINENSCHMIDT, Appellant, v. CONTINENTAL CASUALTY COMPANY, a Corporation, (Garnishee) Respondent, L.A. HOFMANN, Defendant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.
AFFIRMED.
Glover E. Dowell, Andrew J. Reis and N. Murry Edwards for appellant.
(1) The court erred in reopening the judgment under Section 113 of the Code of Civil Procedure and in sustaining garnishee's motion to direct judgment for garnishee, because the court had no jurisdiction to take such action. The court further erred in overruling plaintiff's motion to set aside the court's order in reopening the judgment and directing judgment for garnishee and erred in not reinstating plaintiff's judgment. Art. V, Chap. 8, Secs. 1560, 1589, R.S. 1939; Secs. 1, 2, 116, Code of Civil Procedure; Walkeen Lewis Millinery Co. v. Johnson, 109 S.W. 847, 130 Mo. App. 325; Roberts v. Meek, 45 S.W. (2d) 537; Gilbert v. Malan, 100 S.W. (2d) 606, 231 Mo. App. 469; Barnes Hosp. v. Quinlivan, 136 S.W. (2d) 332. (2) The provisions of garnishee's liability insurance policy covered the accident of October 22, 1941, and garnishee by reason thereof became indebted to defendant Hofmann for the amount of plaintiff's claim. The court, therefore, erred in holding that there wasn't sufficient evidence to submit the question to the jury. Lajoie v. Central West Cas. Co. of Detroit, Mich., 228 Mo. App. 701, 71 S.W. (2d) 803; Rainwater v. Wallace, 169 S.W. (2d) 450, on transfer to Supreme Court, 174 S.W. (2d) 835, 351 Mo. 1044; LeBlanc v. New Amsterdam Cas. Co., 8 So. (2d) 83, on transfer to La. Sup. 13 So. (2d) 249; United Roofing Co. v. Independent Bonding & Cas. Co., 9 N.J. Misc. 575, 155 Atl. 140; Liberty Mutual, Inc., v. Hathaway, 306 Mass. 428, 28 N.E. (2d) 425; Wilson v. Marshall, 277 Mich. 583, 269 N.W. 607. (3) The garnishee took charge of the defense of plaintiff's claim under the terms of the policy within a few days after the accident occurred and assumed and retained control of the defense of Hofmann until a judgment was rendered against him in favor of plaintiff and by so doing garnishee waived its right to deny and is now estopped from claiming that plaintiff's judgment is not covered by the terms of the liability insurance policy herein. Cowell v. Employers Indemnity Corp., 34 S.W. (2d) 705, 326 Mo. 1103; Friedman v. Maryland Casualty Co., 71 S.W. (2d) 491, 228 Mo. App. 680; Rieger v. London Guarantee & Accident Co., 215 S.W. 920, 202 Mo. App. 184; National Battery Co. v. Standard Accident Ins. Co., 41 S.W. (2d) 599, 226 Mo. App. 351; Royle Mining Co. v. Fidelity & Cas. Co., 103 S.W. 1098, 126 Mo. App. 104; Royle Mining Co. v. Fidelity & Cas. Co., 142 S.W. 438, 161 Mo. App. 185; Graff v. Continental Auto Ins. Underwriters, 35 S.W. (2d) 926, 225 Mo. App. 85.
Fordyce, White, Mayne, Williams & Hartman and F.W. Schwarz for respondent.
(1) Section 113 of New Civil Code applies to this case. Sec. 2, New Civil Code; Sec. 1578, R.S. 1939. (2) The policy shows as a matter of law that L.A. Hofmann is not an insured therein. Fertig v. General Acc. & Life Assur. Corp., 13 N.Y.S. (2d) 872, affirmed in 54 N.Y.S. (2d) 466; Webster v. Inland Supply Co., 287 Ill. App. 567, 5 N.E. (2d) 849. (3) Where an automobile liability policy has attached thereto a non-ownership endorsement, the omnibus provision of the policy proper does not apply to the automobiles listed in the schedule of such endorsement; the omnibus clause is in force only with automobiles owned by the named insured. Whitney v. Employers' Indemnity Corp., 202 N.W. 236; Clark v. Mutual Casualty Co., 123 F. (2d) 499; Loughaan v. Rea (Employers' Mutual Indemnity Corp., Garnishee), 250 N.W. 389. (4) Even if there were conflict between the omnibus clause and the non-ownership endorsement, the provisions of the endorsement would control. Aetna Ins. Co. v. Houston Oil & Transport Co., 49 F. (2d) 121; Wagner Electric Corp. v. Ocean Accident & Guar. Corp., 36 F. (2d) 186; Hofmann v. Central Surety & Ins. Corp., 17 N.E. (2d) 619, 297 Ill. App. 371; 6 Blashfield Ency., Auto Ins., p. 3892. (5) The language of the contract here is unambiguous. Unequivocal language is to be given its plain meaning though found in an insurance contract. State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 127 S.W. (2d) 675. (6) Defendant L.A. Hofmann, having been notified that the policy afforded him no protection, acknowledged by him months before the trial of the damage suit against him, and his consent and agreement at that time that the payment of his attorney fees by the insurance company was not to affect the non-liabilityf of the insurance company, garnishee is not estopped to deny its defense of non-coverage. Western Casualty & Surety Co. v. Beverforden, 93 F. (2d) 166; Myers v. Continental Cas. Co., 22 S.W. (2d) 867; Myers v. Continental Casualty Co., 12 F. (2d) 52; Commercial Casualty Ins. Co. v. Fruin-Colnon Contracting Co., 32 F. (2d) 425; 45 C.J.S., p. 686. (7) L.A. Hofmann, not being an insured in this policy, he can not be made one by alleged estoppel on the part of garnishee; estoppel cannot be involved to create primary liability. Macomber v. Minneapolis Fire & Marine Ins. Co., 187 Wis. 432, 204 N.W. 331; C.E. Carnes & Co. v. Employers' Liability Assurance Corp., 101 F. (2d) 739; Shepard v. Metropolitan Life Ins. Co., 231 Mo. App. 148, 99 S.W. (2d) 144; Rosenberg v. Assurance Co., 246 S.W. 1009; Fidelity & Guarantee Fire Corp. v. Bilquist, 99 F. (2d) 33; McCoy v. Northwestern Mut. Relief Assn., 92 Wis. 577, 69 N.W. 697; Ruddock v. Detroit Life Ins. Co., 209 Mich. 638, 177 N.W. 242.
This is a garnishment proceeding. Plaintiff had a verdict and judgment against the garnishee, which the court, proceeding under Laws 1943, p. 387, Sec. 113,* later set aside and followed with a judgment for the garnishee. Plaintiff thereupon appealed.
In the principal action Henry Linenschmidt was plaintiff and L.A. Hofmann and Heath Guaranteed Heat Company, Inc., a corporation (hereinafter sometimes designated Heath Company), were defendants. Plaintiff sued in St. Louis City and sought damages for injuries sustained October 22, 1941, when an automobile operated by Hofmann collided with a wagon and team driven by plaintiff. The record shows that at the close of plaintiff's case an instruction was given to find in favor of defendant Heath Guaranteed Heat Company, Inc., and that thereupon plaintiff took an involuntary nonsuit as to said defendant, with leave to set the same aside. The jury returned a verdict in favor of plaintiff and against defendant Hofmann for $7,500. Plaintiff's motion to set aside the involuntary nonsuit as to defendant Heath Company was overruled. Plaintiff had judgment against Hofmann for $7,500 but his cause of action against Heath Company was dismissed. In this garnishment proceeding Hofmann testified that when plaintiff was injured he was operating his automobile in the stoker business of the Heath Company, proof that must have been wanting in the main action. Thereafter, Hofmann was adjudged bankrupt, scheduling the judgment. No payment was ever made on the judgment.
At the time of plaintiff's injury there was in effect automobile policy No. CA-3,165,319 of the Continental Casualty Company, a corporation, issued to the Heath Company and protecting against liability for bodily injuries and property damages. Proceedings were had in connection with plaintiff's $7,500 judgment against Hofmann which resulted in the Continental Casualty Company being summoned as garnishee; and the instant controversy is whether said policy covers the liability of defendant Hofmann under the judgment to plaintiff. Additional facts will be developed under the points discussed.
Plaintiff presents a preliminary issue before reaching the merits. The trial of the garnishment resulted in a verdict on May 16, 1946, in favor of plaintiff and against the Continental Casualty Company for $12,006.75, embracing the original judgment, costs, et cetera; and on said day the court ordered the garnishee to pay said sum into the registry of the court within ten days (Sec. 1567). On May 24 the garnishee (proceeding under Code Sec. 113, supra) filed its motion to set aside the verdict and judgment and for judgment in accordance with its motion for a directed verdict, and also a motion for new trial. On July 8, the garnishee having defaulted in payment, judgment, upon oral motion of plaintiff, was "rendered for plaintiff and against garnishee" for said $12,006.75 (Sec. 1579), in conformity with the order of May 16. On July 9 the garnishee refiled its motion for judgment in accordance with its motion for a directed verdict and refiled its motion for a new trial. On July 25 the court sustained the garnishee's motion for judgment in accordance with its motion for a directed verdict, reopened said judgment under Sec. 113, supra, vacated the verdict and judgment theretofore entered, rendered judgment in favor of the garnishee and against plaintiff, and overruled the garnishee's motion for new trial. Plaintiff's motion to set aside this action of the court was overruled July 30, and plaintiff appealed.
[1] Plaintiff contends the trial court exceeded its jurisdiction in thus proceeding. Our General Code for Civil Procedure (Laws 1943, p. 353 et seq.) provides that judgments are to be entered as of the day of the verdict and motions for new trial are to be filed within ten days after entry of the judgment (Code Sec. 116); and that a motion to set aside a verdict and judgment and enter judgment in accordance with a motion for a directed verdict is to be filed "within 10 days after the reception of a verdict" (Code Sec. 113). Plaintiff points out that the rendition of judgment on the day of the verdict would be premature under our garnishment...
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