M. F. A. Mut. Ins. Co. v. Quinn

• Decision Date: 04 May 1953
• Docket Number: No. 21897,21897
• Citation: 259 S.W.2d 854
• Parties: M. F. A. MUT. INS. CO. v. QUINN et al.
• Court: Missouri Court of Appeals

Page 854

259 S.W.2d 854

M. F. A. MUT. INS. CO. v. QUINN et al.

No. 21897.

Kansas City Court of Appeals, Missouri.

May 4, 1953.

Ralph L. Alexander, Warren D. Welliver, Howard B. Lang, Jr. and Alexander, Ausmus, Harris & Welliver, Columbia, for appellant.

Peterson & Nelson, Paul M. Peterson and Will L. Nelson, Columbia, for respondents McAdam, Caldwell & Hamrick.

Howard F. Major, Columbia, for McJilton.

Sapp & Bear and William H. Sapp, Columbia, for respondents, Charles and Raymond Quinn.

SPERRY, Commissioner.

This appeal was transferred to us from the Supreme Court. See M.F.A., Mutual Insurance Company, a corporation v. Charles Quinn, Raymond Quinn, William K. McJilton, John Marvin McAdam, James E. Caldwell and Mildred Hamrick. Mo.Sup., 251 S.W.2d 633.

Plaintiff sought a declaratory judgment to the effect that its automobile liability policy No. 1-35435 was not in force and effect on the morning of January 13, 1950, between 7:50 and 8:25 A.M., when a truck, described in said policy, owned by Charles Quinn and being then and there driven and operated by defendant Raymond Quinn, was involved in a collision with an automobile owned and operated by defendant William K. McJilton. Defendants McAdam, Caldwell, and Hamrick were passengers, riding in the McJilton automobile at the time the collision occurred.

The cause was submitted to a jury. The verdict was for defendants, upon which a judgment was entered. Plaintiff appeals.

The pertinent allegations of the petition, as stated by the Supreme Court, 251 S.W.2d 633, were:

'Paragraph 2 of plaintiff's petition alleged: The issuance in June, 1949, of the policy, 'effective June 29, 1949, to December 29, 1949,' upon the truck, to Charles Quinn as 'insured'; that under the policy 'plaintiff agreed to pay on behalf of the insured all sums which the insured should become obligated to pay by reason of liability imposed upon the insured by law for damages * * * because of bodily injury sustained by any person or persons, caused by accident arising out of the ownership, maintenance or use of' the truck; 'that said policy provided that the limit of plaintiff's liability for all damages * * * arising out of bodily injury to one person in any one accident was $10,000 and for bodily injury to two or more persons in any one accident was $20,000 and for damages to property of others in any one accident was $5,000; said policy provided that the unqualified word 'insured' wherever used therein included not only the named insured but also any person legally responsible for the use of said truck, provided the actual use was with the permission of the named insured; said policy further provided that plaintiff should pay to the named insured damages to said truck arising out of collision in the amount of the actual damages caused by said collision, less the sum of fifty dollars ($50.00); said policy also provided that plaintiff should defend in the name and in behalf of the insured any suit alleging such injury, and seeking damages on account thereof, even if such suit be groundless, false or fraudulent.'

'The petition alleged that plaintiff had extended the policy for ten days, that Quinn failed to reinstate the policy within such period and that the policy expired January 8, 1950; that on January 13, 1950, after the collision, Quinn paid a $36.15 premium to plaintiff's 'part time soliciting agent' who forwarded it to plaintiff; that plaintiff received the $36.15 the same day and on January 16, 1950, mailed Quinn a receipt therefor; and that on January 16, 1950, plaintiff notified Quinn that the policy was not in force at the time of the collision, that plaintiff would not 'reinstate' the policy and tendered Quinn the $36.15, which tender Quinn refused.

'Paragraph 7 was: 'Plaintiff states that claims have been made by the defendants (naming the four occupants of the McJilton car) against the defendants Charles Quinn and Raymond Quinn for damages growing out of said collision and said defendants Charles Quinn and Raymond Quinn have notified plaintiff of said claims for damages and have requested plaintiff to entertain and recognize said claims because said defendants Charles Quinn and Raymond Quinn claim and assert that plaintiff's said policy of insurance was in full force and effect at the time of said collision. In this connection, plaintiff states that said defendants Charles Quinn and Raymond Quinn have requested and demanded that plaintiff investigate said collision and to defend them against any and all claims that might grow out of said collision.'

'In Paragraphs 8 and 9, plaintiff denied liability on the ground that the policy was not in effect at the time of the collision, and asserted that plaintiff was 'under no obligation to defendants Charles Quinn or Raymond Quinn to investigate said collision or to defend any claims growing out of said collision or to pay to any of said defendants any sum which defendants Charles Quinn or Raymond Quinn might become obligated to pay by reason of liability imposed upon said defendants by law for damages growing out of said collision.''

Defendants, by their several answers, admitted the allegations contained in paragraphs 2 and 7 of the petition. They alleged that, on January 13, 1950, prior to the occurrence of the collision, defendant Charles Quinn paid to J. E. Saunders, plaintiff's agent, the sum of $36.15 as and for the semi-annual premium then due on said policy; that the plicy was thereby reinstated and extended; that, on January 16, 1950, plaintiff forwarded to Quinn a receipt for said premium; and that said policy was in full force and effect at the time the collision occurred, having been renewed or reinstated for a term of six months beginning December 29, 1949.

Plaintiff's evidence was to the effect that the policy was issued to Charles Quinn on June 29, 1948, for a period of six months, ending December 29, 1948, at 12:01 A.M.; that said policy provided for its renewal at six month intervals thereafter upon payment of the specified semi-annual premium of $36.15 on or before due date; that it was so renewed and kept in force from December 29, 1948 to December 29, 1949; that the premium due for the period beginning December 29, 1949 was not paid; that plaintiff extended said policy and kept same in force until January 8, 1950; that on January 8, 1950 the policy was lapsed for nonpayment of premium due December 29, 1949 and was, thereafter, without force or effect.

Charles Quinn received a letter from plaintiff, urging him to 're-instate' policy No. 1-35435, by paying the 'premium due' of '$36.15.' The letter was written on plaintiff's stationery, dated Janaury 9, 1950, and was received January 11. It was signed by A. D. Sappington, 'General Counsel' for plaintiff and stated, among other things: 'P.S. If you decide to reinstate your M.F.A., insurance, pin a check for the premium due to this letter and mail to the company.' (Italics ours.)

Charles Quinn stated that he received the letter January 11, 1950; that he cannot read or write; that his wife told him that his insurance was due; that, at about 7:00 A.M., January 13, 1950, he took the letter and walked to the road, a short distance from his home, intending to board a bus for Columbia, where plaintiff's office was located, and to pay the premium; that the bus was due at about 7:30 but he left his house earlier, hoping to 'catch' a ride and save 85 cents fare; that a man from Iowa picked him up and took him to Columbia; that he alighted near the business house of M.F.A., Exchange, plaintiff's duly authorized agent; that he walked to the Exchange and handed the above-mentioned letter to J. E. Saunders; that he paid in cash to Saunders, $36.15; that he paid the premium at 8:05 A.M.; that he, at that time, had no knowledge that there had been a collision between the truck and the McJilton automobile, if such collision had occurred, but learned about the collision two hours later.

Mr. Saunders stated that Charles Quinn paid said premium to him, in cash, at 8:30 A.M.; that he, Saunders, wrote a check on the Exchange, payable to plaintiff, folded it in the letter, placed the letter and check in an envelope and mailed to plaintiff. Plaintiff admitted that the check was received at its office on that same day.

Defendant Raymond Quinn stated that he was driving the truck at the time the collision occurred; that his father was not present; that he, thereafter, proceeded to Columbia, to the M.F.A., Exchange where, at about 10 o'clock A.M., he reported the accident to Mr. Saunders, who told him to report same to plaintiff's office; that he immediately telephoned plaintiff's office, from the Exchange, and reported the collision. Plaintiff does not deny that the collision was reported by Raymond Quinn, by telephone, during the forenoon of January 13, 1950.

The exact time the collision occurred, with reference to the exact time Quinn paid the premium to plaintiff's agent, is in sharp dispute. Plaintiff produced strong and convincing evidence which tended to prove that the collision occurred at 7:55 o'clock, A.M., and that the money was paid at 8:30 A.M. Defendant's evidence was to the effect that the money was paid at 8:05 A.M., and that the collision occurred between 8:05 and 8:25 A.M.

It is admitted that plaintiff caused two of its investigators to go to the scene of the collision, at about noon of January 13, where they interviewed witnesses and investigated the circumstances of the collision.

It is also admitted that plaintiff mailed a card to Charles Quinn, and that he received it in due course. It was postmarked at Columbia, Mo., January 16, 1950. On the address side of the card the following appeared: 135435, (which is the policy number) and the following: 'Policy Premium, Date Paid 1-13-50--amount $36.15; Date due_____.'

On the reverse side appeared the following:

'Premium Receipt For Insurance

This is an acknowledgment to the policyholder to whom this card...