Mistele v. Ogle

• Decision Date: 10 September 1956
• Docket Number: No. 2,No. 44945,44945,2
• Citation: 293 S.W.2d 330
• Parties: Billie MISTELE, Plaintiff-Respondent, v. Dale W. OGLE, Defendant-Respondent, and Phoenix Indemnity Company, Garnishee-Appellant
• Court: Missouri Supreme Court

Page 330

293 S.W.2d 330

Billie MISTELE, Plaintiff-Respondent, v. Dale W. OGLE, Defendant-Respondent and Phoenix Indemnity Company, Garnishee-Appellant.

No. 44945.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1956.

Harold T. VanDyke, Davis, Thomson, VanDyke & Fairchild, Kansas City, for garnishee-appellant, Phoenix Indemnity Co.

Roy F. Carter, Sprinkle, Knowles & Carter, Kansas City, for plaintiff-respondent.

BARRETT, Commissioner.

Dan W. Ogle and Dale W. Ogle are father and son and obviously the initials 'D. W.' are appropriate for either of them. On May 18, 1950, Dale, while driving an automobile in Kansas City, struck and injured Billie Mistele, a pedestrian. To recover damages for her resulting personal injuries Billie instituted an action against Dale and Dan in which she alleged that Dale was 'the agent, servant and employee of defendant Dan W. Ogle within the scope of his agency and employment' when he negligently struck and injured her. At the time Dale was driving what was thought to be, at least by some people, a 1941 Studebaker automobile. The plain inference upon this record is that Dale had no liability insurance. Dan, however, had a liability insurance policy in the Phoenix Indemnity Company covering a 1936 Lafayette (Nash) automobile. In any event the occurrence was reported to Dan's liability insurer and on June 24, 1950, he gave a statement in which he said that in March 1950 he had sold the Lafayette and purchased a Studebaker and that he had requested the agent, in Parsons, Kansas who issued the policy, to change the coverage to the recently purchased automobile. On May 19, 1950, the day following Dale's accident, the local agent at Parsons placed an endorsement on Dan's liability policy showing a 1942 Studebaker instead of the 1939 Nash. Billie's action for damages was instituted on July 26, 1950 and on August 21, 1950 Dan and Dale signed a joint statement in which they recounted how the father had purchased the automobile Dale was driving from the Armacost Motor Company, Dale's employer. It was not then set forth in the joint statement, however, that Dan had two Studebaker automobiles, a 1941 model and a 1942 model. Neither was the fact set forth that Dale, an automobile mechanic, either some weeks before the accident or afterward, had switched motors in the two automobiles, placing the motor from the 1942 automobile in the 1941 chassis and the motor from the 1941 automobile in the 1942 chassis. Depending on which version is to be accepted, Dale may have been driving the 1941 Studebaker chassis with the motor from the 1942 model Studebaker when he struck and injured Billie. However, the liability insurance company's attorneys continued representing both Dale and Dan until May 19, 1952 when another firm of lawyers entered their appearance as 'additional attorneys.' That firm withdrew as counsel on July 17, 1952 and on September 15, 1952, after notice to Dan and Dale, the insurance company's lawyers withdrew as their counsel and on November 3, 1952 another firm entered their appearance 'on behalf of the above defendants.' On January 13, 1953 Billie dismissed her action as to 'Dan W. Ogle only,' a jury was waived and there was a default judgment against Dale W. Ogle in the sum of $10,000. Thereafter this garnishment proceeding followed and a jury found the issues in favor of the garnisher and a judgment was entered against the garnishee, the Phoenix Indemnity Company, in the sum of $11,200.

Upon this the garnishee's appeal it is contended that the court erred in refusing its motions for a directed verdict for the reasons that, upon this record, the 1941 Studebaker involved in the accident was not an automobile covered by the policy and the issue of the company's estoppel to deny the fact should not have been submitted to the jury. On the other hand, the respondent garnisher contends, under the evidence, that the automobile involved in the collision was the one endorsed on the policy and, in addition, whether it was or not the garnishee by defending the action from July 21, 1950 to September 15, 1952, without a reservation of rights, waived the defense that the automobile involved in the collision was not covered by the policy. The respondent garnisher also contends, by reason of what she says are admitted facts and certain 'uncontradicted' testimony, that the court should have directed a verdict in her favor.

First as to the garnisher's latter argument, the garnishee has not briefed the point but the garnisher filed no after trial motions and has not appealed from the judgment in her favor. 4 C.J.S., Appeal and Error, Sec. 379, p. 815. In any event, in this garnishment proceeding, including the issue of waiver and estoppel, the plaintiff garnisher had the burden of proving every fact essential to the garnishee's liability, 38 C.J.S., Garnishment, Sec. 228(b), p. 474; Royle Mining Co. v. Fidelity & Casualty Co. of New York, 161 Mo.App. 185, 142 S.W. 438, and, aside from the fact that the evidence was not 'uncontradicted,' it was the exclusive province of the jury, in the first instance, to pass upon the credibility of the plaintiff's evidence. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. In the view we have come to as to the essential merits of this appeal it is not necessary to set forth all of the complicated facts and circumstances and indicate the possible inferences. Dan W. Ogle was not called as a witness in this proceeding. The plaintiff garnisher in support of her claim, not for any purpose of impeachment, read from a deposition, taken at the instance of the garnishee, parts of his testimony and, consequently, has vouched for its credibility. Green v. Western Union Tel. Co., Mo.App., 58 S.W.2d 772; Edwards v. Metropolitan Life Ins. Co., Mo.App., 137 S.W.2d 591. His deposition and Dale's testimony, the other witness called by the garnisher, conflicts with their prior written statements, is often self-contradictory and in some respects is contrary to indisputable written documents. The credibility and weight of the evidence aside, Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105, it was nevertheless of sufficient probative force if accepted to support the two issues involved here.

According to the garnishee's evidence the 1941 Studebaker was not covered by the policy and there was no notice to the company within thirty days of its 'delivery' to Dan, that it was a newly acquired automobile replacing the insured 1936 Lafayette. Of course, if this version of the transaction is established or believed there was no coverage of the 1941 Studebaker. Annotation 34 A.L.R.2d...