McGarrah v. Stockton, 8751

CourtCourt of Appeal of Missouri (US)
Citation425 S.W.2d 223
Docket NumberNo. 8751,8751
PartiesMargie McGARRAH, Plaintiff-Appellant, v. Gale Gene STOCKTON, Defendant, State Farm Mutual Automobile Insurance Company, Garnishee-Respondent.
Decision Date08 February 1968

Edward V. Sweeney, Monett, Emory Melton, Cassville, for plaintiff-appellant.

Karl W. Blanchard, Blanchard & Van Fleet, Joplin, for garnishee-respondent.

TITUS, Judge.

A collision of automobiles on February 16, 1963, begot plaintiff an unsatisfied $100,000 default judgment against defendant in the Circuit Court of Barry County. To aid execution, plaintiff summoned State Farm Mutual Automobile Insurance Company as garnishee. The garnishment action was court tried and the facts were stipulated. Garnishee disclaimed liability because, as it asserts, the policy issued defendant was effectively cancelled for nonpayment of premium on February 9, 1963, or seven days before the accident occurred. The trial court agreed with garnishee and plaintiff appealed. The limit of garnishee's liability to defendant under the policy was '$10,000 for all damages arising out of bodily injury sustained by one person in any one accident.' This also is the limit of garnishee's possible liability to plaintiff in garnishment, it constitutes the amount now in dispute and reposes appellate jurisdiction in this court. V.A.M.S. Const. art. V, §§ 3 and 13; V.A.M.S. § 477.040; Meyers v. Smith, Mo., 375 S.W.2d 9, 15(5); Nye v. James, Mo.App., 373 S.W.2d 655, 657(1).

The policy's 'Declarations' provided 'The policy period shall be as shown under 'Policy Period' and for such succeeding periods of six months each thereafter as the required renewal premium is paid by the insured on or before the expiration of the current policy period. The 'Policy Period' shall begin and end at 12:01 A.M. standard time. * * * The premium shown is for the policy period and coverages indicated on page 1.' The stated premium was $52.10 and the 'Policy Period' was for six months from November 23, 1962, to May 23, 1963.

After defendant had been continuously insured under the policy for sixty days, garnishee agreed 'to continue such coverage in force until the expiration of the current policy period (but that) these agreements shall be void and of no effect: (a) if the premium for the policy is not paid when due.' Garnishee could 'cancel this policy in accordance with the terms hereof by written notice, addressed to the named insured * * * stating when, not less than ten days thereafter, cancellation shall be effective * * * the effective date and hour of cancellation stated (in the notiec) shall become the end of the policy period * * * If the company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made at the time cancellation is effected or as soon as practicable thereafter, but the payment or tender of unearned premiums is not a condition of cancellation.'

When defendant executed the application for the policy he paid garnishee's agent the sum of $23.05. Both the application and the 'Balance Due Statement' attached to the issued policy stipulated the $26.05 balance of the premium was due to be paid by January 23, 1963. Defendant did not pay or tender the balance due on January 23, 1963, or at any other time, and garnishee mailed him a 'Cancellation Notice' on January 28, 1963, which advised that as 'the full amount required to keep this policy in force' had not been received when due 'this policy is cancelled, effective 12:01 A.M. Standard Time on * * * February 9, 1963.' Defendant received the notice and does not complain of its form or timeliness in so far as the ten day policy requirement is concerned. Garnishee advised defendant on February 20, 1963, it was sending him, through its agent, a check for the unearned premium. The $4.06 check was mailed by the agent to the defendant but he refused to accept it.

Erudite counsel's ingenuity to concoct unique arguments supporting plaintiff's contention the policy was effective on the casualty date, was not, unfortunately, applied in any effort to comply with V.A.M.R. M.R. 83.05(a)(3) and (e). The lone 'point' upon which plaintiff relies in her brief is 'The Circuit Court erred in finding that the garnishee respondent had the right to cancel the policy of insurance prior to the date of loss and erred in holding that by making such cancellation garnishee respondent is therefore not liable to plaintiff.' The 'point' does not undertake to relate, as required by the rule, 'wherein and why' the trial court allegedly erred in finding garnishee could cancel the policy or to advise 'why it is contended the Court was wrong' in adjudging garnishee not liable to plaintiff. Appellate courts have so often and so long forborne administering the coupe de grace to appeals for similar procedural faux pas, many appellants may now believe they have acquired, through immemorial disobedience without harm, a prescriptive right to breach the rule. Like restraint on our part in this cause should not be interpreted as condonation of the infraction but as a desire towards disposition of the case on its merits. V.A.M.R. 83.24.

Remembering the policy was cancelled under the provisions which permitted this to be done by garnishee 'if the premium for the policy is not paid when due,' and admitting defendant 'purchased the policy for a policy period from November 23, 1962, to May 23, 1963,' at the stated premium of $52.10, plaintiff acknowledges inability to find any authority favorable to and 'squarely in point' with the theories she advances. By resorting to the 'argument' portion of her brief, we find plaintiff initially contending the $26.05 paid by defendant when he signed the policy application amounted to a separate purchase of insurance coverage 'for the three months period from November 23, 1962, to February 23, 1963,' and the 'balance due' defendant was to pay on January 23, 1963, represented a separate premium required to procure coverage for an additional and distinct three month period from February 23, 1963, to May 23, 1963. Having for her purposes thus bisected both the stated premium of $52.10 and the 'Policy Period' designated in the insurance contract, plaintiff next insists garnishee could not effectively cancel the policy for the nonpayment of premium 'when due' prior to the expiration of the first three months of the policy period because the premium for that term had been paid. Plaintiff cedes that defendant's failure to pay the 'balance due' on January 23, 1963, voided garnishee's agreement to keep the policy in effect for the six month period of the policy, but only permitted garnishee, upon proper notice, to effect cancellation on some date subsequent to the expiration of the initial three months of the policy period. Predicated upon her assumptions the $52.10 premium and the six month policy period designated in the contract could be divided into two equal parts and that a separate premium for the first separate half of the 'Policy Period' had been paid, plaintiff additionally asserts (and...

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9 cases
  • Bourne v. Manley, 8807
    • United States
    • Court of Appeal of Missouri (US)
    • December 4, 1968 dispute, exclusive of costs, is less than $15,000. Art. V, Secs. 3 and 13, Const. of 1945, V.A.M.S.; § 477.040; McGarrah v. Stockton, Mo.App., 425 S.W.2d 223, 225(1). It is not clear whether the trial court's judgment rested upon a finding of express or implied permission, and on appeal ......
  • Stone v. FARM BUREAU TOWN & COUNTRY INS., No. 26965
    • United States
    • Court of Appeal of Missouri (US)
    • October 11, 2006 ascertain the specific date, at least 10 days in the future, when the notice of cancellation becomes effective. McGarrah v. Stockton, 425 S.W.2d 223, 228 (Mo.App.1968). We believe this interpretation of the policy comports with the plain and ordinary meaning of the language used in the c......
  • Stone v. Farm Bureau Town & Country Insurance Company, No. 26965 (MO 12/30/2005), 26965
    • United States
    • United States State Supreme Court of Missouri
    • December 30, 2005 ascertain the specific date, at least 10 days in the future, when the notice of cancellation becomes effective. McGarrah v. Stockton, 425 S.W.2d 223, 228 (Mo. App. 1968). We believe this interpretation of the policy comports with the plain and ordinary meaning of the language used in the......
  • Williams v. Metropolitan Life Ins. Co., 33461
    • United States
    • Court of Appeal of Missouri (US)
    • November 18, 1969
    ...and effect to the contract as it is written. (Wichman v. Aetna Casualty and Surety Co., Mo.App., 412 S.W.2d 528, 532; McGarrah v. Stockton, Mo.App., 425 S.W.2d 223, 228.) It is not the function of the court to re-write the contract (Gage v. Connecticut General Life Insurance Co., Mo.App., 2......
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