Meyers v. Smith, 49882

Decision Date13 January 1964
Docket NumberNo. 49882,No. 1,49882,1
Citation375 S.W.2d 9
PartiesRalph MEYERS et al., Plaintiffs-Respondents, v. Daryl Dean SMITH, Defendant, Western Casualty and Surety Company, of Fort Scott, Kansas, Garnishee-Appellant
CourtMissouri Supreme Court

Roberts & Roberts, J. Richard Roberts, Farmington, for appellant.

Dearing, Richeson & Weier, Hillsboro, Melvin Englehart, Jefferson City, for plaintiffs-respondents.

DALTON, Presiding Judge.

This is an appeal by garnishee from a $17,412.50 judgment entered against it in a garnishment proceeding, being the amount of a judgment theretofore rendered in favor of plaintiffs and against defendant Daryl Dean Smith (with accrued interest) in an action for the wrongful death of plaintiffs' fourteen-year-old daughter, Ruth Meyers.

The action for wrongful death was tried three times and reviewed twice on appeal. See Meyers v. Smith, Mo.Sup., 300 S.W.2d 474, where a judgment for $15,000 was reversed and the cause remanded for error in the admission of evidence, and Meyers v. Smith, Mo.App., 349 S.W.2d 412, wherein a judgment for plaintiffs for $15,000 was affirmed on appeal.

In the trial of the garnishment proceeding the parties filed what has been termed a 'Stipulation of Facts' but what is, in truth, a stipulation that certain evidentiary facts (not ultimate facts) were true. (See Perry v. Wiggins, 8 Cir., 57 F.2d 622, 625; Murphy v. Doniphan Tel. Co., 347 Mo. 372, 147 S.W.2d 616, 619 [5 et seq.].) The stipulation contained the further agreement that '* * * the right is preserved to the parties to challenge the propriety of the court's consideration of these facts; and it is further understood by and between the parties thereto that each party has the right to introduce additional evidence at the trial of the issues herein going to any of the following facts by way of elaboration thereon or explanation thereof but not in controversion thereof, and that each of the parties has the right to introduce any additional evidence as to any other facts not hereinbelow stipulated.'

No additional evidence was offered or received at the trial and, on the record presented, the court (without the aid of a jury) found the issues for the plaintiffs and against the garnishee and entered judgment, as stated. Garnishee has appealed and has stated the facts substantially as follows:

On May 17, 1955, a 1953 Ford automobile occupied by six teenagers was involved in a one-car collision, where the automobile left the highway and collided with a tree. One of the occupants of the automobile was Ruth Meyers, plaintiffs' daughter, who died as a result of the collision. Another occupant was defendant Daryl Dean Smith, age sixteen, against whom the mentioned $15,000 judgment was rendered. The other occupants of the automobile were Margarita Barker (apparently age fourteen); Paul Head, age sixteen; Jerry Head, age fourteen; and Harold Owens, age seventeen.

The automobile involved in the collision was owned by Ralph Smith, the father of Daryl Dean Smith. Prior to May 17, 1955, the garnishee had issued a policy of insurance insuring Ralph Smith and the Ford automobile in question. The policy contained a clause commonly known as an 'omnibus clause' to the effect that 'the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.'

The policy contained a further provision, as follows: '16. Assistance and Cooperation of the Insured: The insured shall cooperate with the company and upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suit.'

On May 17, 1955, and prior to the date of the collision, Ralph Smith had given his son permission to use the mentioned Ford automobile, the only restriction being that only Daryl Dean should drive it. Whether or not he was so operating the automobile at the time of the collision was the issue thrice tried to a jury.

Following the collision and death of Ruth Meyers the garnishee employed the law firm of Roberts & Roberts to make an investigation of the occurrence. In the process of this investigation Daryl Dean Smith signed a written statement (not dated) wherein he stated that he was the driver of the automobile at the time of the collision, and was driving west of Doe Run, Missouri, on Highway 'W'. 'The road at that point is blacktopped, 2 lane. I was going about 55 miles per hour with my head lights on bright when we suddenly came to a very sharp curve. I started turning with the curve which was to my right and my arm struck the arm of Ruth Meyers who was sitting next to me and I did not make the turn completely. My car went off the edge of the road on my left, hit the shoulder, came back to the highway and then went back to my left, crossed the ditch and ran into a tree. I was thrown from the car before it struck the tree.' The persons in the back seat were also thrown out, while Ruth Meyers and Harold Owens were pinned in the wreckage in the front seat, on the right-hand side where the cowl and door struck the tree.

The other surviving occupants of the automobile also first advised members of the law firm of Roberts & Roberts that Daryl Dean Smith was driving at the time of the collision.

Thereafter, on June 27, 1955, a member of the law firm was advised by the parents of Daryl Dean Smith that he was not driving the automobile at the time of the collision, but rather Ruth Meyers had been the driver. This was the first information obtained by garnishee that Daryl Dean Smith was now claiming that he was not the driver at the time of the collision.

On August 13, 1955, plaintiffs instituted the mentioned suit against Ralph and Daryl Dean Smith for damages on account of the death of their daughter and alleging that Daryl Dean Smith had negligently driven the Ford on the night of the collision. On August 17, 1955, Daryl Dean Smith and Ralph Smith executed to appellant-garnishee a Reservation of Rights Agreement and, thereafter, on September 1, 1955, Roberts & Roberts, at garnishee's direction, filed an answer on behalf of Ralph and Daryl Dean Smith. Plaintiffs subsequently dismissed as to defendant Ralph Smith.

In the three trials and two appeals of the wrongful death action Roberts & Roberts appeared as attorneys for Daryl Dean Smith by direction of garnishee and they were compensated by garnishee for their services. Before each trial the trial court was advised that a Reservation of Rights Agreement had been executed and that Daryl Dean Smith was being represented by Roberts & Roberts at the direction of garnishee and subject to the terms of the Reservation of Rights Agreement. Before each trial Roberts & Roberts advised defendant, Daryl Dean Smith, that they were appearing as representatives of garnishee; that he (Smith) was entitled to employ an attorney of his own choosing; and that Roberts & Roberts would cooperate with said attorney.

At each of the three trials Daryl Dean Smith testified that he was not the driver of the Ford when the collision occurred, but rather that Ruth Meyers was driving. He further testified at each trial that after the collision he asked the other passengers of the car to tell all who asked that he (Smith) was driving the car at the time of the collision. The surviving passengers of the car, who testified at the various jury trials, testified that Ruth Meyers had been driving and that Daryl Dean Smith requested them immediately after the collision to say he was the driver, and that they had so stated to other persons. In each of the jury trials, plaintiffs presented considerable testimony from various witnesses that Daryl Dean Smith, following the collision, had advised them that he was the driver at the time of the collision.

At each of the circuit court trials the jury was instructed that before they could find for plaintiffs and against the defendant they had to find that defendant was the driver at the time of the collision and, conversely, that if they found Daryl Dean Smith was not driving that they should find for defendant, Daryl Dean Smith.

From June 27, 1955, through the date of the last trial between plaintiffs and defendant, Daryl Dean Smith complied with every request made of him by garnishee.

On this record the trial court entered judgment for plaintiffs and against garnishee, as stated, for the amount of the mentioned judgment, interest and costs. Motion for new trial was filed and overruled and garnishee filed notice of appeal.

The sole assignment on this appeal is that the court erred in entering judgment for plaintiffs and against the garnishee based upon the insurance contract issued by garnishee to Ralph Smith, since defendant, Daryl Dean Smith, was not insured against claims arising from the collision occurring on May 17, 1955, because he breached a condition of said contract by failing to cooperate with the garnishee. Appellant insists that the condition of cooperation was a condition precedent and the breach thereof prejudiced the garnishee, hence garnishee was not obligated to these plaintiffs on account of said policy of insurance.

Since this case was decided on the mentioned stipulation and exhibits attached, and by a Judge who heard no testimony, this Court does not accord to the trial court's findings the same deference which it would accord had that court personally heard oral evidence in support of plaintiffs' claim. Temperato v. Horstman, Mo.Sup., 321 S.W.2d 657, 661; Schwartz v. Shelby Const. Co., Mo.Sup., 338 S.W.2d 781, 788[6-8]; Giokaris v. Kincaid, Mo.Sup., 331 S.W.2d 633, 635. This appeal, however, is governed by Supreme Court...

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