Pennsylvania Cas. Co. v. Suburban Service Bus Co.

• Decision Date: 18 May 1948
• Docket Number: 27172
• Parties: PENNSYLVANIA CASUALTY COMPANY, a corporation, Plaintiff-Respondent, v. SUBURBAN SERVICE BUS COMPANY, a corporation, Defendant-Appellant
• Court: Missouri Court of Appeals

211 S.W.2d 524

PENNSYLVANIA CASUALTY COMPANY, a corporation, Plaintiff-Respondent,
v.
SUBURBAN SERVICE BUS COMPANY, a corporation, Defendant-Appellant

No. 27172

Court of Appeals of Missouri, St. Louis

May 18, 1948

Appeal from Circuit Court St. Louis County. Hon. Amandus Brackman, Judge

Affirmed

Wolfe, McCullen, Anderson, Hughes

OPINION

John J. Wolfe [211 S.W.2d 525]

This is an action for a declaratory judgment wherein plaintiff, insurer, seeks to determine the obligation of the insured, defendant, under the terms of two policies of liability insurance. Plaintiff having paid out $ 4600 in excess of its liability under one of the policies issued claims that it was obliged to do so by the terms of an endorsement on the other policy and that by virtue of the same endorsement defendant is obligated to the plaintiff for the overpayment so made. From a judgment for plaintiff in the circuit court the defendant has appealed.

The plaintiff's petition alleges in substance that it issued at the request of the defendant a policy of insurance to cover certain buses that were owned and operated by it and that the buses so covered were listed and described in a schedule attached to the policy. The policy provided that the insurer indemnified the insured against loss arising by reason of bodily injuries sustained by any one other than the driver of the bus through the negligence of the defendant in operating the buses described. It further alleges that the liability was limited to $ 10,000 as to any one person and $ 20,000 as to any one accident, and bus No. 114 was covered by this policy. It further alleges that another policy of the same nature was issued to cover one bus described as bus No. 115, and that the liability limits in this policy were $ 5,000 as to any one person and $ 90,000 as to any one accident. It further alleges that this policy last mentioned had two statutory endorsements, one prescribed by the Interstate Commerce Commission under the Interstate Commerce Act, and one prescribed by the Missouri Public Service Commission, for interstate operations. It is further alleged that bus No. 114 covered by the first policy mentioned collided with another motor vehicle in the state of Illinois and that defendant reported the accident to plaintiff and called upon plaintiff to take over and adjust the claims that arose by [211 S.W.2d 526] reason of the accident. Plaintiff further alleges that it disposed of claims arising out of the accident and expended $ 19,100, at which time there was still outstanding and unpaid two judgments, one of which was for $ 1500 and the other for $ 10,000; that plaintiff advised defendant there was still remaining unexpended a total coverage of only $ 900 and that the remaining judgments could be disposed of in settlement for $ 5500, and that defendant refused to contribute the difference and that under and by virtue of the Interstate Commerce Act and the endorsement attached to the second policy mentioned it paid the $ 4600 over and above its liability on the first policy and claims that it is entitled to reimbursement from the defendant for the $ 4600 so expended.

Attached to the petition as exhibits were the schedules of the buses described, together with "substantially correct" copies of the endorsements.

Defendant demurred to the petition and upon the demurrer being overruled and a motion to strike out portions of the petition being overruled filed its answer alleging that it was duly licensed both by the Public Service Commission of Missouri and the Interstate Commerce Commission of the United States as an interstate carrier, and was operating as such under the laws of Missouri and of the United States; that by reason of certain endorsements the claims arising out of the collision were covered by the plaintiff's insurance policies and that there were other policies issued in addition to those mentioned in plaintiff's petition, and concludes its answer by praying that the policies be construed to obligate the plaintiff to pay all claims arising out of the collision and that they be further construed to hold that the defendant is not indebted to the plaintiff for the payments made.

The evidence discloses that Suburban Service Bus Company was engaged in the operation of buses under certificate of the Interstate Commerce Commission, dated March 1, 1938, which permitted it to operate from St. Louis to points and places in Illinois within 125 miles from East St. Louis. It also appears that the company had been duly licensed to operate in interstate commerce by the Public Service Commission in the State of Missouri since January of 1937. A part of the business of the company consisted in the operation of its buses on "charter" trips. The Pennsylvania Casualty Company had issued to the defendant on September 3, 1940, a policy of liability insurance, standard in form, and covering twenty-two buses operated by the defendant and listed in the policy in a schedule attached to it. The schedule lists the defendant's number for each bus, the year each bus was made, the manufacturer's name and type of body, and the motor number. The policy provides as limits of liability $ 10,000 for each person suffering bodily injury and $ 20,000 for each accident. It further bore a special endorsement which states:

"It is...