Perkins v. Becker

• Decision Date: 05 January 1942
• Parties: C. P. PERKINS, APPELLANT, v. LILLIAN BECKER, DEFENDANT, CENTRAL SURETY & INSURANCE CORPORATION, A CORPORATION, GARNISHEE RESPONDENT
• Court: Kansas Court of Appeals

157 S.W.2d 550

236 Mo.App. 786

C. P. PERKINS, APPELLANT, v. LILLIAN BECKER, DEFENDANT, CENTRAL SURETY & INSURANCE CORPORATION, A CORPORATION, GARNISHEE RESPONDENT

Court of Appeals of Missouri, Kansas City

January 5, 1942

Appeal from Circuit Court of Jackson County.--Hon. Emory H. Wright Judge.

AFFIRMED.

Judgment affirmed.

Robert L. Robertson, Cowgill & Popham and Sam Mandell for appellant.

(1) The insurer is bound by the court's finding that the negligent maintenance of Lillian Becker's automobile was the direct, proximate and sole cause of plaintiff's injuries. American Paper Products Co. v. Aetna Life Ins Co., 204 Mo.App. 527, 223 S.W. 820, 822; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 144 N.Y. 663, 39 N.E. 360; Soukop v. Employers' Liability Assurance Corp., 341 Mo. 614, 108 S.W.2d 86. (2) The insurer's liability for "maintenance" is not affected by the "exclusion" clause. Morse v American Liability Ins. Co. (Pa.), 322 Pa. 91, 185 A. 201; State ex rel. Chillicothe v. Wilder, 200 Mo. 97, 98 S.W. 465; 6 Blashfield, Automobile Law and Practice, p. 321, sec. 3942; R. S. Mo. 1939, sec. 8387(c). (3) Under all rules of construction plaintiff is entitled to judgment. Soukop v. Employers Liability Assur. Corp. of London, England, 341 Mo. 614, 108 S.W.2d 86; State ex rel. Mills Lumber Co. v. Trimble et al., Judges, 327 Mo. 899, 39 S.W.2d 355; State ex rel. Ocean Accident & Guaranty Corp. v. Hostetter, 341 Mo. 488, 108 S.W.2d 17.

Stanley Garrity, M. D. Blackwell and McCune, Caldwell, Downing & Noble for respondent.

(1) All coverage of the policy contract was suspended during the time the automobile was operated by Manuel Becker. Graff v. Continental Auto Ins. Underwriters (Mo. App.), 35 S.W.2d 926, 931; Wehrhahn v. Ft. Dearborn Casualty Underwriters (Mo. App.), 1 S.W.2d 242, 243; R. S. Mo. 1929, sec. 7783 (i) (Now R. S. Mo. 1939, sec. 8401 (i)); Daniel v. State Farm Mutual Ins. Co. (Mo. App.), 130 S.W.2d 244, 248; Morse v. Am. Liability Ins. Co., 322 Pa. 91, 185 A. 201; Hossley v. Union Indemnity Co. of N. Y. (Miss.), 102 S.W. 561; Adams v. Maryland Casualty Co. (Miss.), 139 S.W. 561; Adams v. Maryland Casualty Co. (Miss.), 139 S.W. 453; Reed v. Home State Life Ins. Co. (Okla.), 97 P.2d 53; Aetna Life Ins. Co. v. Braukman, 70 F.2d 647; Bridgewater v. General Exchange Ins. Corp. (Mo. App.), 131 S.W.2d 220, 225; Kleeman Co. v. Casualty Co., 177 Mo.App. 397, 401; State Farm Mutual Auto Ins. Co. v. Coughran, 303 U.S. 485, 82 L.Ed. 970; Universal Indemnity Ins. Co. v. North Shore Delivery Co. (Mo. App.), 100 F.2d 618; Myers v. Ocean Accident & Guaranty Corp., 99 F.2d 485; Giacomo v. State Farm Mutual Auto Ins. Co. (Minn.), 280 N.W. 653; State Farm Mutual Auto Ins. Co. v. Belshe (Ark.), 112 S.W.2d 954; Holland Supply Corp. v. State Farm Mutual Auto Ins. Co. (Va.), 186 S.E. 56; Crahan v. Automobile Underwriters, Inc. (Pa.), 176 A. 817; Witzko v. Koenig (Wisc.), 272 N.W. 864. Cases cited by appellant discussed. American Paper Products Co. v. Aetna Life Ins. Co., 204 Mo.App. 527, 223 S.W. 820; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 144 N.Y. 663, 39 N.E. 360; Soukop v. Employers Liability Assurance Corp., 341 Mo. 614, 108 S.W.2d 86; State ex rel. Chillicothe v. Wilder, 200 Mo. 97, 98 S.W. 465; Morse v. American Liability Ins. Co., 322 Pa. 91, 185 A. 201. (2) There is no ambiguity in the policy. Brock v. Travelers Ins. Co. (Conn.), 91 A. 279, 280; U. S. Fidelity & Guaranty Co. v. S. Guenther, 31 F.2d 919, 920; U. S. Fidelity & Guaranty Corp. v. S. Guenther, 281 U.S. 34, 74 L.Ed. 683, 686; Wagoner v. Federal & Casualty Co. (Mo. App.), 213 N.Y.S. 188, 171 N.E. 803; Donald v. Lewis, 4 D. L. R. 351, 1 D. L. R. 649, 357; State ex rel. Ocean Accident & Guaranty Corp. v. Hostetter, 341 Mo. 488, 108 S.W.2d 17; State ex rel. Metropolitan Life Ins. Co. v. Allen, 357 Mo. 525, 85 S.W.2d 469, 470. Cases cited by appellant discussed. State ex rel. Ocean Accident & Guaranty Corp. v. Hostetter, 341 Mo. 488, 108 S.W.2d 17; Soukop v. Employers Liability Assurance Corp., 341 Mo. 614, 108 S.W.2d 86; State ex rel. Mills Lumber Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355.

OPINION

CAVE, J.

For convenience the parties herein will be referred to as plaintiff, defendant and garnishee.

The plaintiff was injured October 25, 1933, when an automobile owned by defendant Lillian Becker, then being driven by Manuel Becker, who was fourteen years and eight months old, collided with an automobile in which plaintiff was riding. Lillian Becker was not in the car or present at the time of the accident. On the date of the accident, the automobile owned by the defendant was insured under an automobile liability insurance policy issued to her by the garnishee, Central Surety and Insurance Corporation.

Plaintiff brought suit in the Circuit Court of Jackson County, against Lillian Becker, on account of the collision and his ensuing injuries. Notice of the collision and the pendency of the suit were given the insured (garnishee), but it refused to accept the notices and notified all parties concerned that it could not and would not protect anyone under the said policy of insurance, and that it denied all liability, responsibility and coverage under the policy, for the reason that Lillian Becker's automobile was not covered by its policy at the time of the collision because it was then being driven and operated by Manuel Becker contrary to law as to age, he then being only fourteen years and eight months of age.

No defense to the case was made, and in due time a default judgment was rendered against the defendant Lillian Becker for the sum of $ 5000. In the judgment the court found, among other things, as follows:

". . . and that, as such owner, defendant, Lillian Becker, was then negligently maintaining said automobile with faulty brakes and allowing and permitting same to be driven on the public streets of Kansas City, Missouri, in said condition and without having said car provided at all times with two sets of adequate brakes kept in good working order, and that defendant was thereby negligent, and further finds that directly, proximately and solely by reason of such negligent maintenance and ownership by defendant, said automobile was directly, proximately and solely caused to, and did, on said date, collide with the car in which plaintiff was riding . . ."

After the judgment became final and after execution against Lillian Becker was returned unsatisfied, the plaintiff caused summons of garnishment to be served upon the garnishee herein. The interrogatories to garnishee, garnishee's answer, the denial of garnishee's answer to the interrogatories, and the garnishee's reply to plaintiff's denial, developed but one issue between the plaintiff and garnishee, viz.: a construction of the coverage of the insurance policy.

Plaintiff contends that since his judgment was predicated on the negligent maintenance of the automobile, the garnishee is liable under Item I (a) of the insuring agreements of the policy, which is:

"To insure the assured, within the limits specified herein, against loss from liability imposed by law upon the assured for damages on account of: bodily injuries . . . suffered or alleged to have been suffered by any person . . . from accident occurring during the policy period . . . by reason of the ownership, maintenance, or use . . . of any automobile described in the schedule."

The garnishee contends that it is not liable because the policy also has this provision under the heading of "Exclusions:"

"This policy does not cover: . . . (4) while the automobile is being operated by any person contrary to law or ordinance as to age, or by any person under the age of fourteen (14) years in any event;" and since it was admitted that Manuel Becker, the driver of the automobile, was operating the same contrary to law (Sec. 8401, R. S. Mo. 1939 (i) ), such exclusion provision applied and relieved the garnishee from any liability on the judgment secured against Lillian Becker.

A jury was waived and the issues in the garnishment proceeding were submitted to the court sitting as a jury on an agreed statement of facts, with certain exhibits attached thereto. In due time the court found the issues for the garnishee and the plaintiff perfected his appeal to this court.

There were no declarations of law or finding of facts requested by either party.

Plaintiff contends that since his judgment in the damage suit was predicated on the negligent "maintenance" of the automobile by the insured, Lillian Becker, that therefore, the "exclusion" clause does not apply; while the garnishee contends that all coverage on the policy contract was suspended during the time the automobile was operated by Manuel Becker in violation of the above statute.

Plaintiff argues that the finding of the trial court in the damage suit that the insured, Lillian Becker, was guilty of negligently maintaining her automobile with faulty brakes and allowing and permitting the same to be driven on the public streets in such condition, was the proximate cause of the accident, is binding on all the parties hereto. [Soukop v Employers' Liability Assurance Corp., 341 Mo. 614, 108 S.W.2d 86; American Paper Products v. Aetna Life Ins. Co., 204 Mo.App. 527, 223 S.W. 820.] From that premise, he argues that this policy grants protection against liability imposed by law on the insured (Lillian Becker) because of "the ownership, maintenance or use" of her automobile; and that "maintenance" is a thing apart and separate from the "operation" excluded under Item (4) of the "Exclusions" above set out. From plaintiff's brief we conclude that he concedes that the "exclusion" clause would be operative as against "the ownership or use," but not against the "maintenanc...