MFA Mut. Ins. Co. v. Berry

• Decision Date: 16 May 1972
• Docket Number: No. 9139,9139
• Citation: 481 S.W.2d 513
• Parties: MFA MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Appellant, v. C. R. BERRY et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 513

481 S.W.2d 513

MFA MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Appellant, v. C. R. BERRY et al., Defendants-Respondents.

No. 9139.

Missouri Court of Appeals, Springfield District.

May 16, 1972.

Wendell W. Crow, Ford, Ford & Crow, Kennett, for plaintiff-appellant.

Raymond A. Klemp, Caruthersville, Ted M. Henson, Jr., Poplar Bluff, for defendants-respondents.

HOGAN, Justice.

This is a declaratory judgment action wherein plaintiff shought an adjudication of its rights, duties and liabilities under an insurance policy, essentially a species of contractor's liability policy, issued to defendant C. R. Berry. The action was commenced after defendants Clarence C. Berry and Iva E. Berry, then as plaintiffs, filed suit in the Circuit Court of Dunklin County against defendant C. R. Berry, alleging in substance that defendant C. R. Berry, by his agent and servant Clarence Berry Jr., through his negligent operation of a pickup truck belonging to defendant C. R. Berry, had caused plaintiff Clarence C. Berry to fall out of the truck and sustain serious personal injuries. The petition is laid in two counts. In the first count, plaintiff Clarence C. Berry sought judgment in the amount of $150,000 for damages for his personal injuries; in the second count, plaintiff Iva E. Berry sought $50,000 damages for loss of services and consortium.

The policy in question, as noted, is a species of contractor's liability, or 'scheduled liability,' policy. ¹ The operation, or 'hazard,' covered by the policy is '(c)arpentry in the construction of detached private residences for occupancy by one or two families and private garages in connection therewith,' subject to certain exclusionary endorsements not material here. Plaintiff's general insuring agreement is '(t)o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, and as damages because of injury to or destruction of property, including the loss of the use thereof, caused by accident and arising out of the hazards hereinafter defined and designated in the declarations.' The policy also contains, in somewhat modified form, the 'products and completed operations' provision construed in Arnold v. Edelman, supra, and Rafiner Elevator Works v. Michigan Mutual Liability Company, supra, which we need not quote at length. Under the heading 'Exclusions,' it is provided by paragraph (a)(1)(b) of the policy that coverage does not extend '. . . to the ownership, maintenance, operation, use, loading or unloading of . . . automobiles if the accident occurs away from premises owned by, rented to or controlled by the named insured or the ways immediately adjoining.' The policy limits for bodily injury are $25,000 each person and $50,000 each accident.

The accident occurred on Sunday, June 5, 1966, while defendants C. R. Berry (the insured), Clarence Berry and Clarence Berry, Jr., were moving a radial arm saw from the residence of one Willis Hill to storage at the insured's warehouse in Malden, Missouri. The insured had built the house in which Mr. Hill lived, and had left the saw behind. The saw was picked up at Mr. Hill's request because 'the kids were playing out there on it.' The insured, his brother, Clarence Berry, Jr., and their father, Clarence Berry, went to the Hill residence and loaded the saw onto a pickup which belonged to the insured. The insured testified that his brother was an employee and that his father 'was just helping us.' Clarence, Jr., drove the truck, and the other two Berrys started following in an automobile. As they traveled toward the warehouse it became apparent that the saw might fall out of the truck, and Mr. Berry, Sr., got into the truck bed to prevent its doing so. As the truck passed a house which the insured owned, the arm of the saw swung around, struck the insured's father and 'knocked him out of the truck.' He sustained injuries when he fell into the street.

It appears vaguely in the record that there may be other coverage on the truck, but the plaintiff filed this action, making all the Berrys parties and setting forth the substance of the facts we have just recited by allegation and by incorporation of the policy and the petition filed by defendant Clarence Berry and his wife. The plaintiff insurer ruther alleged that the defendants were not engaged in 'carpentry,' within the meaning of the policy; that the accident did not occur on 'premises owned by, rented to or controlled by the named insured,' as that phrase is properly construed; strued; and that the insured had failed to cooperate with the plaintiff in certain respects, as required by the policy provisions. Plaintiff prayed a declaration and determination of its rights and duties, including (a) a declaration that the accident was not covered by the policy; (b) that the plaintiff had no duty or obligation to defend the suit pending against the insured, C. R. Berry, or to pay any damages which defendants Clarence Berry and his wife might recover; or (c) a declaration that the insured's failure to cooperate had relieved it of any obligation to defend the suit or satisfy any judgment obtained against the insured. The trial court resolved all the issues tendered against the plaintiff. The plaintiff then filed a timely but unavailing motion to amend the judgment or render judgment for the plaintiff, or in the alternative for a new trial. The court denied the motion and the plaintiff appealed to this court.

The plaintiff has noticed the question of our appellate jurisdiction and our Supreme Court's ruling in Travelers Indemnity Company v. Bohn, Mo., 460 S.W.2d 642, 644(1), but urges that the present case is indistinguishable from Republic Insurance Company v. Hearn, Mo., 414 S.W.2d 549; M.F.A. Mutual Ins. Co. v. Quinn, Mo., 251 S.W.2d 633; Cotton v. Iowa Mutual Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, and Tickner v. Union Insurance Company, Mo.App., 425 S.W.2d 483, 485(1), and opinion of this court filed before the Travelers case was decided. Defendants make no point of our jurisdiction or want of it, but of course that is a matter into which we must inquire for ourselves. Mo.Const. art. V, § 11, V.A.M.S.; Nance v. Kimbrow, Mo.App., 460 S.W.2d 290, 291(1); In re Boeving's Estate, Mo.App., 388 S.W.2d 40, 43(1).

The notice of appeal was filed in the trial court on May 25, 1971, before the constitutional amendments of 1970 became effective. Our jurisdiction was then limited to those appeals where the amount in dispute, exclusive of costs, did not exceed the sum of $30,000. § 477.040, R.S.Mo. (1969), as amended L.1969, Third Extra Session, p. 110. Prior to the constitutional amendments of 1970 there was always a monetary limit on the jurisdiction of the Courts of Appeals, but while the constitutional and statutory language imposing that limit was simple and...