Noland v. Farmers Ins. Co.

• Decision Date: 02 February 1967
• Docket Number: No. 24674,24674
• Citation: 413 S.W.2d 530
• Parties: Rosalie NOLAND, Plaintiff-Appellant, v. FRAMERS INSURANCE EXCHANGE Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 530

413 S.W.2d 530

Rosalie NOLAND, Plaintiff-Appellant, v. FRAMERS INSURANCE EXCHANGE Defendant-Respondent.

No. 24674.

Kansas City Court of Appeals, Missouri.

Feb. 2, 1967.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 3, 1967.

J. William Blackford, Blackford & Wilhelmsen, Kansas City, for appellant.

Richard H. Heilbron, Heilbron & Powell, Kansas City, for respondent.

SPERRY, Commissioner.

This case was transferred to us by the Supreme Court on jurisdictional grounds.

Plaintiff sued defendant insurance company for damages growing out of personal injuries suffered by her while seated in the automobile of defendant's insured when it was struck in the rear by an uninsured motorist. From a summary judgment in favor of defendant, plaintiff appeals.

The facts are not in dispute. On the 31st day of May, 1963, plaintiff was a passenger in an automobile being operated by her brother-in-law, Cyrus J. Button. Button had given plaintiff an automobile and had taken her to Liberty, Missouri, to have it transferred to her name. The transfer was made and on the way back from Liberty to the home of plaintiff, Button suggested that she ride with him, when they came to the place where her car was located. Plaintiff remained in the car. The car carrying plaintiff then proceeded on down the road. The husband of plaintiff got in the other car and drove down the road following the Button car. At the intersection of 92 highway and the gravel road on which the cars were traveling, the Button car stopped. The husband did not. The car operated by plaintiff's husband struck the car in which the plaintiff was riding, in the rear, injuring plaintiff. There was no insurance on the automobile being driven by the husband.

Mr. Button had insurance with the defendant. This policy carried the provision, in effect at the time of the accident, known as uninsured motorist coverage. Plaintiff made claim under it for personal injuries she suffered in the accident, and defendant denied the same. Plaintiff filed suit naming defendant and her husband, Charles Noland, as defendants. Defendant insurance company intervened as a defendant in Count I of plaintiff's petition (directed against the husband alone), and moved to dismiss Count I. The motion was granted. Plaintiff appealed but the transcript was not furnished on time and the appeal was dismissed. Plaintiff, thereafter, filed her Amended Petition, naming defendant herein as sole defendant, claiming damages under the uninsured motorist clause, in the amount of $9,500.00.

Defendant admitted the facts of the accident as above stated; that Mr. Noland had no liability insurance; that Mr. Button had a policy of insurance with the defendant; that said policy included uninsured motorist coverage; that the driver of the automobile (the husband) was an uninsured motorist within the meaning of the policy; and denied that plaintiff was entitled to recover.

It is agreed by both parties that, from a time prior to May 31st, 1963, continuously to the present date, plaintiff and Mr. Noland have been lawfully married and have lived continuously together as husband and wife.

Defendant, in its brief, admits that plaintiff was an insured under its policy, that her husband was an 'uninsured motorist' thereunder, and that plaintiff is entitled to coverage in this case if all requirements and conditions of that coverage were fulfilled. Defendant agreed, in its policy, as follows:

'To pay all sums determined to be payable as provided below, which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injuries sustained by the insured caused by the accident, * * *.' (Italics supplied).

'A wife cannot maintain a civil action against her husband for a personal tort.' Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645, 646. (However the court there held that such restriction did not affect her right to sue her husband's employer for a tort committed against her by her husband while acting within the scope of his employment). In Brawner v. Brawner, Mo., 327 S.W.2d 808, 809, the court considered a tort action instituted by a husband against his wife, based on an automobile accident occurring during coverture. The court said (811) in the present state of the law, one spouse is not permitted to maintain this type of action against the other because of the common law rule of immunity, (citing sec. 1.010, R.S.Mo.1949, V.A.M.S.). The court held this to be true notwithstanding 'the recent cases' of Hamilton v. Fulkerson, Mo., 285 S.W.2d 642, and Ennis v. Truhitte, Mo., 306 S.W.2d 549, relied on by plaintiff. In the Hamilton case the tort occurred prior to the marriage of the parties but was tried after the marriage had been consummated. It was said that, by statute, her pre-existing cause of action was not extinguished by her marriage. In the Ennis case, the wife received personal injuries because of her husband's 'gross and reckless conduct' while operating an automobile in which the wife was a passenger. It was held that the rule prohibiting the wife from suing her husband for a personal tort committed by him against her should not be applied...