Neuner v. Gove
| Citation | 133 S.W.2d 689 |
| Decision Date | 30 November 1939 |
| Docket Number | No. 19548.,19548. |
| Parties | NEUNER et al. v. GOVE (FARMERS AUTOMOBILE INTER INS. EXCHANGE OF LOS ANGELES, CAL., et al., Garnishees). |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.
Action by F. H. Neuner and Elizabeth Neuner against Fred C. Gove to recover for the wrongful death of the plaintiffs' minor son in a collision between the defendant's truck and an automobile in which plaintiffs' son was riding as a guest, wherein a judgment was obtained by the plaintiffs. Execution on the judgment was returned unsatisfied, and the Farmers Automobile Inter Insurance Exchange of Los Angeles, California, and the Farmers Underwriters Association, attorney in fact, were summoned as garnishees. From a judgment in favor of the plaintiffs as against the garnishees, the garnishees appeals.
Judgment reversed, and cause remanded.
Cowgill & Popham and Guy W. Green, Jr., all of Kansas City, Leslie B. Hutchison, of Vienna, and Hennings, Green, Henry & Hennigs, of St. Louis, for appellants.
John P. Peters and Henry Balkenbush, both of Linn, for respondents.
This is an appeal from a verdict and judgment in the sum of $1,845 in favor of the plaintiffs and against the garnishee.
The facts show that plaintiffs recovered a verdict and judgment against the defendant, Fred Gove, in the sum of $1500, for damages for the wrongful death of their minor son, brought about by a collision between defendant's truck and an automobile in which deceased was riding as a guest. Defendant carried a policy of insurance on his truck with the Farmers Automobile Inter Insurance Exchange of Los Angeles, California. The execution upon said judgment was returned unsatisfied, resulting in the Farmers Automobile Inter Insurance Exchange of Los Angeles, California, and the Farmers Underwriters Association, attorney in fact, being summoned as garnishees. The Farmers Automobile Inter Insurance Exchange of Los Angeles, California, will hereinafter be referred to as the garnishee. Garnishee denied that it owed anything to the defendant, and the issues were tried upon the denial of the plaintiffs to the answer of the garnishee. The disputed question in the case is whether the defendant carried liability insurance with the garnishee.
The facts show that the garnishee is a foreign reciprocal exchange insurance company, maintaining offices in this state in Kansas City; that it had agents in various parts of Missouri who solicited fire, theft, liability and property damage insurance on automobiles, but their authority was confined to taking applications, collecting premiums and delivering policies. They had no authority to countersign policies or make contracts of insurance. Such an agent was one Henry Pietzmeyer located in Linn. The testimony of Pietzmeyer was introduced in evidence by the plaintiffs. He testified that he did not issue any policies himself; that the only authority he had was to take applications and forward them to the office of the garnishee in Kansas City.
Pietzmeyer further testified that one Balkenbush reported to the witness, that the defendant desired insurance on his automobile; that he instructed Balkenbush to take defendant's application, which was done, and the application dated October 10, 1936, was forwarded to the office of the garnishee in Kansas City with a recommendation by Pietzmeyer that garnishee accept it. Balkenbush gave defendant the following receipt in connection with the taking of his application: "Oct. 8, 1936 Received of Fred C. Gove _____ Thirty-two and 60/100 _____ Dollars on Car Insurance Fire Theft Bodily In & P. D. & Collision $32.60 Farmers Automobile Inter-Insurance Exchange By A. H. Balkenbush." No witness explained the meaning of the abbreviations contained in the receipt. The application recited to the effect that the insurance written by the garnishee was confined to policies issued upon applications and that the application should become effective when signed and accepted by the garnishee. In the lower left-hand corner of the application was a blank space where the application, if accepted, was to be indorsed by the agent of the garnishee. No acceptance of the application appears by indorsement upon it. The application was introduced in evidence and in it appears the following:
"Section 1 Fire and theft, including Transportation, Tornado
Membership Fee Deposit
Cyclone, Windstorm, or Hail............. $5.00 $3.74
For Home
Office Use
$8.74 Paid
Section 2. (Collision) Standard 80 %) $5.00 $13.75
Section 3. (Property Damage..$5,000
(Liability..Limits (10,000 20,000 $5.00 $8.40
(State total limits wanted)
S A S C $32.15
L I 8.74"
The erasures are not directly explained. There is no direct evidence as to who made them but it is to be inferred from all of the evidence that they were made after defendant signed the application and without his knowledge. It appears that $32.15 was the total amount of the premium for six months insurance for a policy of $5000 collision and property damage and "ten and twenty thousand" liability insurance.
The testimony of defendant, introduced in evidence by the plaintiffs, is not very clear as to his understanding as to exactly what insurance he was applying for. The truck he was insuring was engaged in carrying school children. He testified that he would not have been permitted to transport school children without liability insurance; that he did not remember whether he applied for fire, theft and windstorm insurance; that "I was mostly interested in this liability"; that he was certain he applied for liability insurance and he was told by Balkenbush that he was taking his application for liability insurance and both he and Pietzmeyer told him "all the while we talked about it, and after I got the policy" that defendant had $5000 liability insurance.
After garnishee received the application it issued a policy which was either forwarded to Pietzmeyer, who delivered it to defendant, or sent directly by mail to the defendant. Defendant testified that he received it within a reasonable time after he applied for the insurance; that it had indorsed upon it the words: "Please read your policy"; that he read it, but "I couldn't understand half." The policy issued provided for fire, theft and windstorm insurance and eighty percent standard collision insurance with an initial net premium of $27.49. It provided for no liability insurance. It appears from the opening statement of counsel for the plaintiffs that after defendant received the policy it was discussed at a meeting where four persons were present, including an attorney. Defendant's evidence is to the same effect. According to the opening statement Balkenbush was present and said he thought that defendant was fully covered for $5000. There is no evidence as to what any of the others said. There is no claim that defendant, at any time before the accident, complained to anyone that the policy did not include liability insurance.
It appears that shortly before the accident defendant had his insurance transferred from the truck, upon which it was originally written, to another truck and that he was charged an additional premium of $7.50, which he paid and the policy was turned over to garnishee for the proper indorsements. The policy was not returned to the defendant until after the accident.
Plaintiffs introduced the testimony of one Joseph M. Fambrough, who testified that at the time the insurance was taken out by defendant the witness was office manager for the garnishee in Kansas City; that he was given authority to accept or reject applications submitted by agents; that the garnishee had in Missouri what were termed state managers having in charge large sections or territories and district managers who usually had one or two counties; that Pietzmeyer was a district manager in Osage County where the application for the policy in question was taken. Fambrough testified that the coverage applied for in the application was "Eighty per cent standard collision, public liability and property damage; ten and twenty thousand limits on public liability; five thousand dollar limit on property damage": , and the following coverage was not to be written, "80 per cent standard collision and public liability and property damage as applied for." ; that $32.60 was sufficient premium to pay for the insurance indicated in the application.
Defendant testified that he reported the accident to Pietzmeyer and Balkenbush immediately; that Pietzmeyer came to see him the next morning after the accident. The plaintiff, Fred H. Neuner, testified that Balkenbush came to his house after the accident and asked him what he was going to do. Balkenbush said: "I am the adjuster" and the witness then referred Balkenbush to his attorney.
Fambrough testified that it was the duty of the district managers to investigate accidents where there had been "material" damage; that district managers did not investigate serious accidents but that they were instructed "merely to advise us of the accidents"; that they made investigations of accidents only "in cases of material damage claims"; that the agent would look into the accident immediately and report the claims; that if Pietzmeyer and Balkenbush...
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