Nye v. James
| Decision Date | 16 December 1963 |
| Docket Number | No. 8180,8180 |
| Citation | 373 S.W.2d 655 |
| Parties | Clara Ruby NYE, a minor, by her mother and next friend, Mrs. Ben Moore, Plaintiff-Appellant, v. Gloria JAMES, Defendant, Farmers Mutual Automobile Insurance Company, Garnishee-Respondent. |
| Court | Missouri Court of Appeals |
Fred S. Selsor, Kansas City, for plaintiff-appellant, Murvyl M. Sullinger, Pittsburg Kan., Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, of counsel.
E. E. Thompson, Kansas City, William E. Haney, Topeka, Kan., for garnishee-respondent, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
Garnishment. Following a jury-waived trial on March 22, 1960, in the Circuit Court of Barton County, plaintiff Clara Ruby Nye, pro ami, obtained a judgment for $50,000 against defendant Gloria James, a minor residing in Mulberry, Kansas (just west of the Barton County, Missouri-Crawford County, Kansas, line), for personal injuries sustained by plaintiff as the result of a vehicular collision on July 30, 1959, on U. S. Highway 69 near Fort Scott, Kansas, which involved a 1953 Ford sedan (hereinafter referred to as the Ford) then being driven by defendant Gloria in which plaintiff Clara was riding. Ownership of the Ford was evidence by a Missouri certificate of title issued under date of July 1, 1957, to 'Earl W. Long and/or Nancy Long, tenants by entirety' of Kansas City, Missouri. Policy No. 24-070486 of Farmers Mutual Automobile Insurance Company (hereinafter referred to as the policy), issued to 'Nancy W. Long' as 'named insured' for an initial policy period of six months from October 13, 1957, to April 13, 1958, and thereafter renewed for successive six-month periods, was in effect on the date of accident and, under Part I thereof, obligated Farmers Mutual 'to pay on behalf of the insured all sums [within the then policy limits of $5M/$10M/$5M] which the insured shall become legally obligated to pay as damages' because of bodily injury or property damage 'arising out of the ownership, maintenance or use of the owned automobile,' to wit, the Ford. (All emphasis herein is ours.) That portion, here material, of the so-called omnibus clause of the policy provided that 'the following are insureds under Part I: (a) With respect to the owned automobile, (1) the named insured and any resident of the same household, (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured . . ..'
Acting under a general execution issued on the aforesaid judgment, plaintiff initiated this garnishment proceeding against Farmers Mutual, as garnishee. Rule 90; Chapter 525. (All references to rules are to the Rules of Civil Procedure, V.A.M.R.; and all statutory references are to RSMo 1959, V.A.M.S.) The sole issue framed by plaintiff's denial of the garnishee's answers to interrogatories and by the garnishee's reply to said denial [Rule 90.18; Sec. 525.190; Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835, 839(9); South Central Securities Co. v. Vernon, 227 Mo.App. 486, 54 S.W.2d 416, 421(1)] and presented in the jury-waived trial by the circuit court, was whether defendant Gloria was an 'insured' within the contemplation and meaning of the omnibus clause of the policy or, as that issue is put plainly and precisely in plaintiff's-appellant's brief, whether defendant Gloria was, at the time of accident, using the Ford with the permission of Nancy W. Long, the 'named insured' in the policy. The circuit court resolved that issue in the negative and thus in favor of garnishee. Upon this appeal by plaintiff, we have appellate jurisdiction because the amount in dispute, exclusive of costs, is $5,000 [Const. of 1945, Art. 5, Secs. 3 and 13, V.A.M.S.; Sec. 477.040], that being the maximum limit of garnishee's potential liability for bodily injury to one person.
Earl W. Long and Arlie James were cousins. Arlie and his family, including his daughter Gloria (defendant herein), resided in Mulberry, Kansas. For some two years after Earl W. and Nancy W. Long were married in 1950, they lived in Burgess, Missouri, just across the state line from Mulberry. When they moved from Burgess, the Longs settled in Kansas City, Missouri, and there lived as man and wife until their separation in September 1958. On December 3, 1958, Nancy was granted a decree of divorce, custody of three minor children, and child support.
During October 1957, Nancy called one Garth Peck, an agent of Farmers Mutual, concerning insurance coverage on the Ford; and, in response to that call, Peck went to the Long home and, after some discussion, took from Nancy a signed application for issuance of a policy to her. The application stated that she would drive the insured automobile '100%' of the time; and, as we have noted, the policy subsequently was issued to her, as the sole 'named insured.' However, the fact that the application showed that Nancy was married and a 'housewife' prompted the underwriting department of Farmers Mutual to obtain an independant report, which tended to explain, as well as confirm the truth of, the application in that it disclosed that Earl, then thirty-three years of age, did not drive and had 'no apparent desire to do so although unimpaired and capable of learning.' At the trial on December 28, 1961, Earl frankly stated that he did not drive in October 1957, when the policy was issued; and, although suggesting that he then (in 1957) was 'just learning' to drive, he quickly conceded that, at the time of trial, he still had not taken the examination for a driver's license and did not have one.
About December 3, 1958, the date of entry of the decree of divorce, Earl and Nancy entered into an oral property settlement agreement. As Nancy stated it upon trial, 'there were payments to be made on the household furnishings because they were mortgaged to buy the car and so we made an agreement between ourselves that I would keep the household furnishings and make the mortgage payments on them and he [Earl] would keep the car and make the payments on it.' There was no dispute about the terms of this oral agreement, Earl confirming it in similar language. However, he did not take possession of the Ford when the agreement was reached or the decree of divorce was entered. Because he had no place to park it at the location to which he moved, he told Nancy to keep the Ford at her home until he called for it. She did this, using it as she had previously. Several months later on a date not fixed precisely by the evidence but which Earl thought was around 'the last of April or first of May' 1959, he called Nancy and asked that she bring the Ford to him by the following Friday evening. In compliance with this request, Nancy parked it in front of Earl's place of residence and left the keys with his landlady. In the interim between the date of entry of the decree of divorce and Earl's request for possession of the Ford, the policy had come up for renewal and Nancy, from her personal checking account, had paid the premium for the next six-month policy period from April 13 to October 13, 1959. Neither Earl nor Nancy executed the assignment on the reverse side of the certificate of title to the Ford (issued, as we have observed, to 'Earl W. Long and/or Nancy Long, tenants by entirety'), which said certificate of title, at all times herein material, remained in the possession of a finance company.
Nancy stated that, when Earl called for the Ford, 'he said he wanted to take it and keep it'--'he told me he was going to take it to Mulberry and have Arlie [James] do some work on it.' Earl likewise testified that 'I told her [Nancy] I was going to take it to Mulberry'--'I was going to have some work done on it' by Arlie James. A short time later, Earl thought 'the weekend of Decoration Day' 1959, he took the Ford to Mulberry and left it with Arlie. As to the 'arrangements' between Earl and Arlie at that time, Arlie said 'there was a little agreement; he [Earl] brought it down and said he wanted to leave it and get it out of the city and he wanted me to do a little work on it for him . . ..' The Ford thereafter remained in Mulberry until the date of accident, to wit, July 30, 1959. On that date, Gloria James (then twenty-five days short of her nineteenth birthday) had intended to take her father's (Arlie's) automobile for a trip to Fort Scott; but 'there was something wrong with it,' so Arlie directed Gloria (without any request on her part) to take the Ford.
As a prerequisite to their principal contention (i. e., that Gloria was, at the time of accident, using the Ford with Nancy's permission), plaintiff's counsel make the prefatory assertion that, since there had been no assignment of the certificate of title to the Ford, Nancy remained 'a co-owner' of that vehicle after possession thereof had been delivered to Earl pursuant to the oral property settlement agreement, and that, as such 'co-owner,' Nancy had legal capacity and power to grant 'permission' for use of the Ford, within the contemplation and meaning of the omnibus clause in the policy. Cf. Haynes v. Linder, Mo.App., 323 S.W.2d 505, 510(6).
Actually, the effect of the divorce decree of December 3, 1958, upon the title to the Ford was to convert the tenancy by the entirety into a tenancy in common and to vest each of the divorced spouses with an undivided one-half interest in the Ford. Durr v. Vick, Mo., 345 S.W.2d 165, 169(4); Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731, 738(5), 18 A.L.R.2d 1100; Mack v. Mack, Mo.App., 286 S.W.2d 385, 388(1). If (as is by no means clear from the record) the parties to the oral settlement agreement had undertaken thereby to convey legal title to the Ford to Earl, the agreement certainly would have been ineffectual to have accomplished that purpose. Sec. 301.210; Kelso v. Kelso, Mo., 306 S.W.2d 534, 538-539(5, 6), 71 A.L.R.2d 258; M.F.A. Cooperative Ass'n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 286...
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