McDaniel v. Lovelace
| Decision Date | 15 June 1965 |
| Docket Number | 31623,Nos. 31622,s. 31622 |
| Citation | 392 S.W.2d 422 |
| Court | Missouri Court of Appeals |
| Parties | Gail Frances McDANIEL and Patricia Ann McDaniel, minors, by Pearl M. Eisnogie, next friend, Plaintiffs-Appellants, v. Nettie LOVELACE, Administratrix of the Estate of Clayton Thomas Lovelace, Joe Ray, Inc., a Corporation, and Douglas Wayne Clemons, Defendants-Respondents. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Respondent, v. WESTERN CASUALTY & SURETY COMPANY, a Corporation, et al., Defendants, Gail Frances McDanniel and Patricia Ann McDaniel, minors, by Pearl M. Eisnogle, next friend, defendants-Appellants. |
Pannell & Hess, W. L. Pannell, Festus, for plaintiffs-appellants.
Dearing, Richeson, Weier & Roberts, H. L. C. Weier, Hillsboro, for defendant-respondent Nettie Lovelace.
Smith & Colson, Taylor Smith, Jr., Farmington, for defendants-respondents Joe Ray, Inc. and Douglas Clemons.
The appeal in cause No. 31,623 involves the validity of a nunc pro tunc order entered in the case of the Fidelity and Casualty Company of New York, a Corporation v. Western Casualty Casualty Company, a Corporation, et al., being cause No. 32,566 in the Circuit Court of Jefferson County. The appeal in cause No. 31,622 is by plaintiffs in the case of Gail Frances McDaniel and Patricia Ann McDaniel by Pearl M. Eisnogle, next friend vs. Nettie Lovelace, administratrix of the Estate of Clayton Thomas Lovelace, Joe Ray, Inc., a Corporation and Douglas Wayne Clemons, from an order of the Circuit Court of Jefferson County sustaining a motion to dismiss the case as the defendant Nettie Lovelace, administratrix. A somewhat detailed statement of facts will be necessary to a complete understanding of the matter involved in said appeals.
On the 12th day of March, 1958, there was a collision on Highway 61-67 in Jefferson County between a Buick automobile owned by Clayton Lovelace, and a tractor-trailer owned by Joe Ray, Inc., a Corporation and being driven at the time by Douglas Wayne Clemons. In the Buick automobile, at the time of the collision, were Clayton Lovelace, John McDaniel, Jr., and Anthony Joseph Backek. All three of these men were killed instantly. Lovelace left surviving him, a widow and three minor children. McDaniel left surviving him, two minor children. Bachek left surviving him, a widow and three minor children. Nettie M. Lovelace was appointed administratrix of the estate of Clayton Thomas Lovelace. Fidelity insured Lovelace against liability imposed by law in the operation of his automobile. McDaniel owned a 1955 Ford automobile and was insured by Western Casualty. It contained omnibus coverage. Joe Ray, Inc., owner of the tractor-trailer, was insured by Travelers Insurance Company.
A controversy arose over who was driving the Buick automobile at the time of the accident, and as to the duties of the respective insurance companies under the terms of their policies. To settle this matter, Fidelity, on May 21, 1958, instituted the above mentioned action, which sought a declaratory judgment to determine the identity of the driver of the Buick, and to declare the rights and duties of Fidelity under its coverage with respect to liability as a result of the accident and the rights and duties of Western under its policy issued to McDaniel with respect to the matter. The defendants in said action were Western; Joe Ray, Inc.; Clemons, the driver of the tractor-trailer; Travelers Insurance Company; Southwestern Bell Telephone Company, whose property was damaged by the collision; Union Electric Company of Missouri, whose poles and wires were likewise damaged; the two McDaniel children; Nettie M. Lovelace, personally and as administratrix of the estate of Clayton T. Lovelace; the Lovelace minors; the Bachek minors; David Compton, the operator of a restaurant in the vicinity of the site of the collision, who plaintiff believed would assert some claim for damages to his property as a result of the collision; and William Vaughn and Homer Probst, the owners of the restaurant building operated by Compton who plaintiff believed would assert some claim for damages to their property. The issues were joined in said action, and on January 12, 1959, the record shows the following order entered in said cause:
It will be observed that the two McDaniel minors were not included in the order.
On December 15, 1958, Gail Frances McDaniel and Patricia Ann McDaniel, the minor children of John McDaniel, Jr., brought suit by Pearl M. Eisnogle, their next friend against Nettie Lovelace, administratrix of the Estate of Clayton Thomas Lovelace, Joe Ray, Inc., a Corporation and Douglas Wayne Clemons. This suit was filed in the Circuit Court of Jefferson County, and is cause No. 32,839 in said court. It sought damages for the death of their father due to the alleged negligence of the defendants.
Thereafter, the case of Fidelity and Casualty Company v. Western Casualty Company, et al. came on for trial. In that case the trial court submitted the issue as to who was driving the Buick at the time of the collision to a jury. The jury by its verdict found that John McDaniel Jr., was driving the car at the time of the accident. The other issues were tried to the court. The trial resulted in a decree declaring that John McDaniel, Jr., was the driver of the Buick at the time of the collision, and that Fidelity and Western should bear the costs of property damage equally between them; that the death claims should be borne in the ratio of two parts by Fidelity, to one part by Western, and that cost and expense of litigation should be borne by said companies at the same two to one ratio. This ratio was determined by the fact that the Fidelity policy had coverage for liability in the sum of $50,000-$100,000 on Lovelace and McDaniel had coverage under the Western policy in the sum of $25,000-$50,000. From this decree, appeals were taken to this Court by Western and the McDaniel minors. This Court, after an examination of the provisions of both policies, held that the coverage afforded by the Fidelity policy was the primary insurance, and that the coverage of Western's policy was for excess insurance, and liability under it was only available for the recovery of any sum over the amount of Fidelity's coverage. We also affirmed that part of the judgment declaring that McDaniel was the driver of the Buick automobile at the time of the collision. Fidelity & Casualty Co., of New York, v. Western Casualty and Surety Company, Mo.App., 337 S.W.2d 566.
Thereafter, and on January 5, 1961, Nettie Lovelace, administratrix of the Estate of Clayton Thomas Lovelace filed a motion in the damage suit instituted by the McDaniel minors to dismiss the cause as to her. The grounds alleged in said motion were that since the court found that John McDaniel, Jr., father of the plaintiffs was driving the Buick automobile at the time of the collision in question, and since the only negligence charged against Clayton Thomas Lovelace was with respect to the driving and operation of said Buick automobile, plaintiffs in said action were not entitled to continue the action against her as administratrix of her husband's Estate. On January 9, 1961, said motion was, by the Court sustained.
Thereafter, and on October 24, 1962, the McDaniel minors filed in said damage suit a motion to set aside the order of January 9, 1961, dismissing said action as to Nettie Lovelace, administratrix, and to reinstate the latter as a defendant. The grounds of said motion were that since there was no guardian ad litem appointed by the Court in Fidelity Casualty Company v. Western Casualty & Surety Company, the declaratory judgment action and in which action they were named as defendants, the judgment in said action was void and invalid to them. This of course was a collateral attack on the judgment, which may not be permissible, a question not before us. See 4o C.J.S. Infants Sec. 108b, pp. 279-280.
On October 30, 1962, Fidelity filed in the Circuit Court, a motion for an order nunc pro tunc in Fidelity and Casualty Company v. Western Casualty and Surety Company, et al., the declaration judgment action. Said motion is in words and figures as follows:
'Comes now plaintiff and shows to the Court that in the order made by this Court in the above entitled cause on the 12th day of January, 1959, set forth in Book 54, Page 190 of the Records of this Court on file in the office of the Clerk of the Circuit Court of Jefferson County, Missouri, there appears the following recital:
"Now on this day the Court appoints J. M. Feigenbaum Guardian Ad Litem for Lovelace minors and William L. Pannell as Guardian Ad Litem for Bachek minors and cause is by the Court set for trial on January 22, 1959.'
'Plaintiff shows to the Court that said order, as appears from the minutes, files and records of the Court should recite as follows:
"Now on this day the Court appoints J. M. Feigenbaum Guardian Ad Litem for Lovelace Minors and William L. Pannell as Guardian Ad Litem for Bachek and McDaniel minors and cause is by the Court set for trial on January 22, 1959.'
'WHEREFORE, plaintiff moves that the order of the Court hereinabove set forth be corrected and amended in the particulars hereinabove set forth and entered nunc pro tunc to show the true order of this Court.'
Thereafter on the 19th day of March, 1963, the Court sustained the foregoing motion, the material part of its order sustaining same being as follows:
'* * *
'And plaintiff shows to the Court that in addition to the said William L. Pannell being appointed as guardian ad litem for the Bachek minors, the said William L. Pannell was also appointed guardian ad litem for the McDaniel minors, to wit, Gail Frances McDaniel and Patricia Ann McDaniel, as appears from the minutes,...
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