Ornellas v. Moynihan

• Decision Date: 07 May 1929
• Docket Number: No. 20540.,20540.
• Parties: ORNELLAS v. MOYNIHAN (FT. DEARBORN CASUALTY UNDERWRITERS OF CHICAGO, Garnishee).
• Court: Missouri Court of Appeals

16 S.W.2d 1007

ORNELLAS v. MOYNIHAN (FT. DEARBORN CASUALTY UNDERWRITERS OF CHICAGO, Garnishee).

No. 20540.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Rehearing Denied May 21, 1929.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Mabel R. Ornellas against Cornelius J. Moynihan, defendant, and the Ft. Dearborn Casualty Underwriters of Chicago, garnishee. From an adverse judgment, the garnishee appeals. Affirmed.

Wilbur C. Schwartz, of St. Louis, for appellant.

Joseph F. Dickmann, George P. Burleigh and James J. O'Donohoe, all of St. Louis, for respondent.

SUTTON, C.

This is a garnishment proceeding. On November 6, 1925, plaintiff obtained judgment against defendant, Cornelius J. Moynihan, for $20,000. Execution was issued on this judgment, and the Ft. Dearborn Casualty Underwriters of Chicago was summoned as garnishee. The trial of the garnishment proceeding, with a jury, resulted in a verdict and judgment in favor of plaintiff against the garnishee for $5,732.30, and the garnishee appeals.

Respondent grounds his right of recovery against the appellant upon a liability insurance policy issued by appellant to defendant, Moynihan. By the terms of the policy, the appellant agrees to indemnify and insure defendant "against any loss by reason of the liability imposed by law upon the assured for damage on account of bodily injuries, fatal or nonfatal, accidentally suffered, or alleged to have been suffered, by any person, or persons, by the reason of ownership, maintenance or use" of the automobile described in the policy, liability being limited to $5,000 for injury to any one person, and total liability for injury to more than one person in any one accident to $10,000; and further agrees "to defend in the name and on behalf of the assured any suit brought against such assured, to enforce a claim, whether groundless or not, for damage suffered or alleged to have been suffered on account of bodily injuries or death or the damage to or destruction of property."

The policy further provides as follows:

"Assured shall notify the Underwriters immediately upon the occurrence of any accident or loss or claim or suit thereunder, and he shall deliver to said Underwriters copies of all documents and papers served upon him, and give the fullest information obtainable in the premises. No claim shall be honored unless report of accident is made within ten days of its occurrence. Report shall be made under oath if required. Assured shall aid said Underwriters in effecting settlements, securing information and evidence, the attendance of witnesses and the procurement of appeals or like proceedings, and he shall not voluntarily assume any liability or interfere in any negotiations for settlement, or in any legal proceeding, or incur any expense, except at his own cost, without the written consent of said Underwriters. * * *

"No suit or action on this policy for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the assured shall have fully complied with all the foregoing requirements."

The judgment on which the garnishment proceeding is based was recovered for damages arising on account of bodily injuries accidentally suffered by respondent when struck by the assured's automobile. The automobile at the time of the accident was being driven and operated by the assured. It is conceded that the automobile which caused the respondent's injury is the automobile covered by the policy sued on, and that the policy was in force at the time of the accident. Respondent was struck by the automobile at the intersection of Grand boulevard and Barrett street, in the city of St. Louis, while she was on the street as a pedestrian for the purpose of boarding an approaching street car at the usual and customary place for street cars to stop and take on passengers. Carl Wehrhahn was struck and injured in the same accident. He brought suit for his injuries, and the suit was defended by appellant pursuant to the terms of the policy in suit here.

Appellant assigns error upon the refusal of its demurrer to the evidence. In support of this assignment, appellant contends that the policy in suit is a contract of indemnity against damages and not a contract of indemnity against liability for damages, and that, because the assured has not paid the judgment obtained against him, the appellant is not liable under the policy. In Wehrhahn v. Fort Dearborn Casualty Underwriters (Mo. App.) 1 S.W.(2d) 242, which case was based upon the same policy and grew out of the same accident involved in the present suit, a like contention was made by appellant and ruled against it. That case is necessarily controlling here. But see also, State ex rel. Indemnity Co. of America v. Daues (Mo. Sup.) 13 S.W.(2d) 1059; Drumm v. Ft. Dearborn Casualty Underwriters (Mo. App.) 5 S.W.(2d) 648; Goerss v. Indemnity Co. of America (Mo. App.) 3 S.W.(2d) 272.

Appellant makes the further point that its demurrer to the evidence should have been given, because the undisputed evidence of both respondent and the appellant shows that the assured had failed to deliver to appellant the copy of the summons and petition served on him in the original suit, as required by the policy. The sheriff's return to the summons shows that he executed the same on January 26, 1925, in the city of St. Louis, by leaving a copy of the summons and petition for assured at his usual place of abode with a person of his family over the age of 15 years. An interlocutory judgment by default was entered on September 11, at the June term, 1925. On inquiry as to the amount of damages, on November 6, at the October term, 1925, final judgment was entered. At the time of the service of the summons and petition, as shown by the sheriff's return, the assured was in Milwaukee, attending a school of civil engineering. His mother, with whom he lived in St. Louis, resided at 3951 Evans avenue. He was in St. Louis during Christmas, 1924. He returned to Milwaukee the 1st of January, 1925, and remained there continuously until the latter part of September, 1925. He testified that he never personally received the copy of the summons and petition, and that he did not know that suit had been brought against him until October 5, 1925. On that day, which was the first day of the October term of court, the assured talked with the appellant's attorney at his office in St. Louis, and learned from him that a default judgment had been entered. The attorney testified that on that day his attention was called to the default judgment by his secretary, and that she got the information from the Daily Record; that this was the first knowledge he had that respondent had brought suit against the assured. He admitted, however, that he had known for a long time that respondent was making claim for damages against the assured, and that the claim was in the hands of an attorney, who had on a number of occasions discussed the case with him, and had informed him that, if settlement was not made, he would have to file suit on the claim. He also testified that he requested the assured to inquire at his mother's home for the copy of the summons and petition; that the assured returned to his office the next day, and informed him that the papers were not at his mother's home, and that his mother knew nothing of them, and said that no such papers had been served on her. Appellant's said attorney, who gave assured the information about the default judgment in this case, represented the appellant in the Wehrhahn Case, both of which cases were at the time pending in the same court. A representative of the appellant from Chicago was in the office of said attorney on October 5th, and also on October 6, 1925. He and the attorney discussed the default judgment with the assured. No complaint was made to the assured by either the attorney or the Chicago representative on account of his failure to deliver the copy of the summons and petition to the appellant. No motion was ever made, or steps taken, to have the default judgment set aside, though final judgment was not entered for a month after the appellant had obtained knowledge that the default had been entered. The...