Moore v. M. F. A. Mut. Ins. Co., 24717

• Decision Date: 04 December 1967
• Docket Number: No. 24717,24717
• Citation: Moore v. M. F. A. Mut. Ins. Co., 422 S.W.2d 357 (Mo. App. 1967)
• Parties: Burnis E. MOORE, Plaintiff-Appellant, v. M.F.A. MUTUAL INSURANCE CO., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 357

422 S.W.2d 357

Burnis E. MOORE, Plaintiff-Appellant, v. M.F.A. MUTUAL INSURANCE CO., Defendant-Respondent.

No. 24717.

Kansas City Court of Appeals, Missouri.

Dec. 4, 1967.

Robert B. Paden, Maysville, for appellant.

Strop, Watkins, Roberts & Hale, St. Joseph, for respondent.

SPERRY, Commissioner.

Defendant had issued to plaintiff its 'Farm Comprehensive Liability Insurance Policy' insuring plaintiff's liability growing out of his activities in connection with the operation of his farm. While operating a self propelled combine along a public road in DeKalb County, Missouri, it was damaged in a collision with a railroad train. The combine was owned by a Mr. McMillin, whose insurance company settled with him for damages to the combine and sued plaintiff for reimbursement under subrogation clauses of its insurance contract. Mr. Moore notified defendant herein and requested that it defend the action, which it failed and refused to do. Mr. Moore employed lawyers and successfully defended the action. In this suit he seeks to recover against M.F.A. the sum of $1,250.00, as and for attorney fees for which he became liable in the former suit, and for penalties. From an adverse summary judgment plaintiff appeals.

The policy mentioned above is numbered 5--32391. Under the section denominated 'coverage B' the limit of liability is $5000.00. Under 'Exclusions', it is provided that this policy does not apply:

'* * *

'(h) under Coverage B to injury to or destruction of property used by, rented to, or in the care, custody, or control of the insured or any other person regularly residing on the premises'. (Emphasis ours.)

Plaintiff pleaded that the property involved here was a combine owned by Charles S. McMillin which plaintiff was operating. Since plaintiff was operating the combine on a public highway it was in his care, custody, and control.

This is not a collision policy. It is a liability policy. Defendant's risk would be much greater if the above mentioned clause should be eliminated by construction. In that event one who had custody or control of a machine might not be as careful to avoid damage to it if he knew that insurance would cover the loss. However that may be, the clause is in the policy and it must be enforced. Northwestern Mutual Insurance Company v. Haglund, Mo.App., 387 S.W.2d 230.

Northwestern Mutual Insurance Company v. Haglund, supra, is a case where Northwestern had issued its automobile collision insurance policy to its insured, Wasson. While this vehicle was being operated by Haglund, with Wasson's consent, it was damaged. Wasson's insurer paid his loss and sued Haglund. Haglund was the owner of a policy issued to him by Lumbermen's Mutual Casualty Company, in which Lumbermen's agreed to pay on behalf of the insured (Haglund) all sums which the insured might become legally obligated to pay as damages because of '* * * injury to or destruction of property, including loss of use thereof, hereinafter called 'property damage'; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * * '. Exclusion I of the policy provides that it does not apply 'to injury to or destruction of (1) property owned or transported by the insured or (2) property rented to or in charge of the insured other than a residence or private garage'. (See 387 S.W.2d 230, l.c. 232.) Haglund sued Lumbermen's as third party defendant...