Missouri Managerial Corp. v. Pasqualino
| Decision Date | 02 March 1959 |
| Docket Number | No. 22851,22851 |
| Citation | 323 S.W.2d 244 |
| Parties | MISSOURI MANAGERIAL CORPORATION, a Missouri Corporation, Attorney-in-Fact for the Subscribers at the Eagle Reciprocal Exchange, Plaintiff-Appellant, v. Carmello PASQUALINO, Margaret Pasqualino, Carol Wisdom, and Michael (Mike) Gillotte, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Clarence C. Chilcott, Kansas City, for appellant.
Pew, Taylor, Sheridan & Baty, John L. Sheridan, John R. Baty, Kansas City, for respondents Carmello Pasqualino, Margaret Pasqualino and Carol Wisdom.
Thomas M. Sullivan, Kansas City, for respondent Michael Gillotte.
MAUGHMER, Commissioner.
This is a suit for declaratory relief under the Uniform Declaratory Judgments Act, Chapter 527, V.A.M.S.
The controversies arise out of an automobile liability insurance policy issued by Missouri Managerial Corporation for Eagle Reciprocal Exchange, to one Michael Gillotte. The ultimate issue to be adjudicated is whether the policy covers Gillotte's liability arising out of an automobile accident which occurred in Platte County, Missouri, on July 10, 1955. The plaintiff and appellant is the insuring company. The defendants include Gillotte, the insured, Carol Wisdom, owner, and Carmello and Margaret Pasqualino, passengers in the other automobile involved in the accident.
The policy was issued February 18, 1955, for a term of one year and covered a 1950 Ford. The insuring agreement provided: 'Newly acquired automobile: An automobile, ownership of which is acquired by the named insured who is owner of the described automobile, if the named insured notifies the company within thirty days following the date of its delivery to him, and if either it replaces an automobile described in this policy * * *'. The liability coverage was $5,000 and $10,000 and for $5,000 property damage.
On May 8, 1955, the insured sold or traded the Ford to Berl Berry Motor Company and replaced it with a 1954 Mercury. The insured did not, within thirty days thereafter, notify the company of this exchange. In fact in his statement of February 13, 1956, he said that when he bought the Mercury he 'changed companies' and 'just dropped the insurance that I had with Eagle'. By its letter dated July 11, 1955, the Eskew Insurance Agency, an agent for the Eagle Company, advised Gillotte that because of failure to remit premium, his policy would be canceled effective July 21, 1955, unless his remittance reached the company prior to that date.
On July 10, 1955, Gillotte, while driving the Mercury, collided with an automobile owned and driven by defendant Carol Wisdom, and in which the defendants Carmello and Margaret Pasqualino were passengers. Apparently company representatives learned about this accident. Mr. Joseph Bott, one of the company's attorneys and investigators, said he examined the statement by the insured which described the accident and named the automobile as a 1954 Mercury. Mr. Bott said the attorney for the Pasqualinos, who were claiming damages, showed such statement to him. In any case, in September, 1955, the company's agents and attorneys were investigating the accident. Gillotte was interviewed by a company investigator and described his automobile as a 1954 Mercury. The company obtained a copy of the Missouri Highway Patrol report of the accident so describing Gillotte's car. Thereafter, the company representatives conducted negotiations with Pasqualinos' attorneys in an effort to settle their claims for damages arising out of the accident and offered $2,000 in settlement. Gillotte took no part in such negotiations nor was he even advised such were being conducted. On September 29, 1955, the company secured a medical examination of the Pasqualinos by its physician.
On November 2, 1955, separate suits for damages arising out of the accident were filed against Gillotte by the three occupants of the other car. The petitions in each suit described Gillotte's automobile as a 1954 Mercury. Gillotte notified the company of these suits and its representatives filed answers therein, took depositions and in no way disclaimed liability until February 13, 1956, when it secured a 'Non-waiver Agreement' from the insured. This document provided that 'Any act, investigation, or defense, or offer of settlement made by Eagle Reciprocal Exchange on assured's behalf shall not be considered to be a waiver of any rights * * * nor shall this agreement be considered as a waiver of any rights of assured under said policy'. We note that this agreement was made months after the company learned that Gillotte's car involved in the accident was the Mercury and not the Ford and after it had investigated the accident, had taken depositions, filed pleadings, secured medical examinations and made offers of settlement.
On April 11, 1956, the case of Margaret Pasqualino v. Gillotte came on for trial in the Circuit Court of Clay County Missouri. The company attorneys were there. Gillotte and Gillotte's personal attorneys were there. Gillotte's attorneys in his behalf filed a written notice and demand that the company either accept liability under the policy and dismiss this declaratory judgment action, which had been filed March 22, 1956, or withdraw from participation in the trial. The company agents and attorneys did neither. Gillotte's attorneys left town and the company attorneys conducted the defense and trial, which resulted, on April 12, 1956, in a verdict and judgment in favor of Margaret Pasqualino and against Gillotte in the sum of $3,750. The company filed a motion for new trial on behalf of Gillotte and argued the same. It was overruled. No appeal was perfected and such judgment therefore became final on May 28, 1956. The other two suits are presently pending and undetermined.
We are first confronted with the question of jurisdiction. Although the appeal was taken to this court, counsel for both appellant and respondents now suggest that jurisdiction is in the Supreme Court.
We have jurisdiction unless '* * * the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars', Section 3, Art. V, 1945 Constitution, 2 V.A.M.S. Our Supreme Court has held many times and without exception, that: '* * * the fact of a value in excess of $7500 must affirmatively appear from the record and may not be surmised or conjectured'. Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509, 511; M. F. A. Mutual Ins. Co. v. Quinn, Mo., 251 S.W.2d 633, 634; Gillespie v. American Bus Lines, Mo., 246 S.W.2d 797, 798. The recital in plaintiff's brief that the amount involved, exclusive of costs, exceeds $7,500 is insufficient, M. F. A. Mutual Ins. Co. v. Quinn, supra.
In National Surety Corp. v. Burger's Estate, Mo., 183 S.W.2d 93, 95, plaintiff sought by declaratory judgment to be relieved on a $30,000 bond. The Supreme Court said: 'The relief sought is not a money judgment, but other relief, to wit, to be discharged from future liability under its said bond. Appellant concedes that it seeks to be relieved of an indefinite and contingent liability.
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'To give this court jurisdiction of an appeal, because of the amount in dispute, 'it must affirmatively appear from the record in the cause that the amount in dispute is in excess of $7,500.' Flynn v. Kinealy, 338 Mo. 522, 92 S.W.2d 671, 674. 'Speculation or conjecture as to the amount in dispute cannot be indulged in for the purpose of determining jurisdiction'. (citing cases). 'We are on firmer ground in holding, as we do, that the appellate jurisdiction of this court, on the ground of the amount in dispute, attaches when, and only when, the record of the trial court affirmatively shows that there is involved in the controversy, independent of all contingencies, an amout exceeding $7,500, exclusive of costs'. Stuart v. Stuart, 320 Mo. 486, 488, 8 S.W.2d 613, 614; Nies v. Stone, Mo.Sup., 108 S.W.2d 349, 350. A mere chance that the amount in dispute may exceed $7,500 does not give this court jurisdiction. (citing cases) '. Cotton v. Iowa Mutual Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, is a suit for declaratory judgment by the insurance company under a $100,000 liability contract. The court held that the maximum amount of the liability under the policy did not place jurisdiction in the Supreme Court.
The petition in our instant case does not ask for a money judgment. It does allege that three suits arising out of the July 10, 1955 accident had been filed against the insured; that the suit by defendant Wisdom for property damage sought a $500 recovery; that the two other suits alleged damages for personal injuries, totalling $22,500, but contained no allegations as to the amount claimed in each suit. One of these suits, namely Margaret Pasqualino v. Gillotte, was reduced to a final judgment of $3,750. The record does not affirmatively show the exact amount claimed in the Carmello Pasqualino action. These allegations as to the other three lawsuits were admitted by all defendants except Margaret Pasqualino, who set up her judgment of $3,750 as a counterclaim.
We believe jurisdiction in our case is with this court. Plaintiff does not seek a money judgment. The only amount of money involved in the judgment itself is $3,750, the amount of the allowed counterclaim. The record discloses definitely one other pending suit for $500, and a second suit in which an undisclosed amount is sought ($22,500, less the amount sued for by Margaret Pasqualino). In State ex rel. State Highway Commission v. Schade, 265 S.W.2d 383, 384, the Supreme Court said: .
We think the amounts, if any, that might finally be recovered in the other two suits are problematical, contingent and speculative....
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