Rainwater v. Wallace

• Decision Date: 01 November 1943
• Docket Number: 38518
• Citation: 174 S.W.2d 835,351 Mo. 1044
• Parties: William M. Rainwater v. Paul Wallace and Norman Klein, Defendants, Employers Mutual Liability Insurance Company, Garnishee, Appellant
• Court: Missouri Supreme Court

174 S.W.2d 835

351 Mo. 1044

William M. Rainwater v. Paul Wallace and Norman Klein, Defendants, Employers Mutual Liability Insurance Company, Garnishee, Appellant

No. 38518

Supreme Court of Missouri

November 1, 1943

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

James R. Sullivan and Arthur R. Wolfe for appellant.

(1) The testimony of Paul Wallace in his California deposition has no probative force and does not make a submissible case and the trial court should have sustained garnishee's demurrer to the evidence. Wells v. Tyler, 38 Mo. 545; Brandon v. Power, 41 S.W.2d 879; Perkins v Becker, 157 S.W.2d 550; Nacy v. LePage, 12 R C. L. 842; Steele v. Kansas City So. Ry. Co., 265 Mo. 97, 175 S.W. 177; State v. McCrackin, 162 S.W.2d 853; Edmonston v. Kansas City, 139 S.W.2d 1073; Hayes v. S. S. Kresge Co., 100 S.W.2d 325; State Farm Mutual Automobile Ins. Co. v. Bonacci, 111 F.2d 413; Downs v. Racine-Sattley Co., 175 Mo.App. 382, 162 S.W. 331; McCoy v. Home Oil & Gas Co., 60 S.W.2d 715; DeLorme v. St. Louis Public Serv. Co., 61 S.W.2d 247; Madden v. Red Line Service, 76 S.W.2d 435; Fleming v. Anderson, 232 S.W. 718; Dempsey v. City L. & Traction Co., 256 S.W. 155; Pashea v. Terminal R. Assn. of St. Louis, 165 S.W.2d 691. (2) The trial court erred in giving plaintiff's Instruction 1, (a) because said instruction was broader than the pleadings and submitted issues not within the pleadings and (b) because there was no substantial evidence upon which to submit whether the truck was being used in direct connection with the named insured, Norman Klein's business. Wells v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291, 14 S.W. 110; Walsh v. Walsh, 285 Mo. 181, 226 S.W. 236; Riley v. City of Independence, 258 Mo. 671, 167 S.W. 1022; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Evans v. Klusmayer, 301 Mo. 352, 256 S.W. 1036; Kramer v. K. C. Power & Light Co., 311 Mo. 369, 279 S.W. 43; Krelitz v. Calcaterra, 33 S.W.2d 909; Jordon v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205; Rosensweig v. Wells, 308 Mo. 617, 273 S.W. 1071; Nahorski v. St. Louis Electric Term. Ry. Co., 310 Mo. 227, 274 S.W. 1025; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511. (3) The question whether Paul Wallace was using the truck on company business at the time of the accident was litigated and determined in the main suit adversely to plaintiff and the judgment and ruling of the court on that issue is res judicata in this garnishment proceeding and bars, estops and precludes the plaintiff from again litigating that issue in this garnishment proceeding which is a continuation of the original suit. State ex rel. Cass County v. Mo. Pac. R. Co., 149 Mo. 104, 50 S.W. 278; Coatney v. St. Louis & S. F. Ry. Co., 151 Mo. 35, 51 S.W. 1036; Nacy v. LePage, 341 Mo. 1039, 111 S.W.2d 25; State ex rel. Kennedy v. Harrison, 228 Mo.App. 469, 69 S.W.2d 307; Forhoff v. Casualty Reciprocal Exch., 113 S.W.2d 1026; Tinsley v. Savage, 50 Mo. 141; Goodman v. Gordon, 61 Mo.App. 85; Soukup v. Employers' Liab. Assur. Corp., 341 Mo. 614, 108 S.W.2d 86; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330; Tomnitz v. Employers' Liab. Assur. Corp., 343 Mo. 321, 121 S.W.2d 745; Roth Tool Co. v. New Amsterdam Cas. Co., 161 F. 709; Amer. Paper Prods. v. Aetna Life Ins. Co., 204 Mo.App. 527, 223 S.W. 820; Berry v. Travelers Ins. Co., 118 N. J. L. 571, 194 A. 72; Sears v. Maryland Cas. Co., 220 N.C. 9, 16 S.E.2d 419; Collins v. Eagle Indemnity Co., 184 A. 747; Morin v. Travelers Ins. Co., 85 N.H. 471, 160 A. 482; 123 A. L. R. 708, Annotation; State ex rel. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; Nevins v. Solomon, 139 S.W.2d 1109; Boillot v. Income Guaranty Co., 102 S.W.2d l. c. 139, 124 S.W.2d 608.

Homer A. Cope, Cope & Hadsell, William A. Pevehouse and Walter A. Raymond for respondent.

(1) The evidence made a submissible case for the jury. The credibility of the defendant, Paul Wallace, was a question for the jury. Rainwater v. Wallace, 19 S.W.2d l. c. 454; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Doty v. American Natl. Ins. Co., 165 S.W.2d 862; Goslin v. Kurn, 173 S.W.2d 86. (2) Plaintiff's Instruction 1 was not broader than the pleadings. Ward v. Scott County Milling Co., 47 S.W.2d 250; State ex rel. Fidelity & Deposit Co. of Maryland v. Allen, 85 S.W.2d 455; Jackson v. Powell, 110 Mo.App. 249, 84 S.W. 1132; Henry v. Sneed, 99 Mo. 407, 12 S.W. 663; State ex inf. Brummall v. Gromer, 252 S.W. 705; Van Brock v. First Natl. Bank in St. Louis, 349 Mo. 425, 161 S.W.2d 258; Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897. (3) The judgment of nonsuit in favor of defendant, Klein, is not res judicata of the liability of his insurer, the garnishee herein. Rainwater v. Wallace, 169 S.W.2d l. c. 454.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

This is a garnishment proceeding in aid of an execution based on a judgment for damages in favor of William M. Rainwater, respondent here, and against defendant Paul Wallace. There was a verdict and judgment in the garnishment proceedings in favor of plaintiff and against the garnishee in the sum of $ 1484.65, which included interest on the judgment and costs, and the garnishee appealed to the Kansas City Court of Appeals. The majority opinion of the court of appeals affirmed the judgment, but Judge Shain dissented; held that the majority opinion was in conflict with rulings in certain cited cases of this court and the Springfield Court of Appeals, and the cause was certified to this court. Rainwater v. Wallace et al., 169 S.W.2d 450.

Defendant Klein, on and prior to July 17, 1938, was in the tree surgery business in Kansas City, and defendant Wallace was his foreman. Sunday afternoon, July 17, 1938, Wallace, while using, in Kansas City, a truck owned by Klein, collided with an automobile driven by plaintiff. Both plaintiff and his wife, who was with him, were injured, and plaintiff brought suit, in three counts, against both Wallace and Klein to recover damages for loss of services of his wife, to recover for personal injuries to himself, and to recover for damages to his automobile. Plaintiff sued both Wallace and Klein on the theory that Wallace was Klein's agent and servant in driving the truck, and was, at the time, acting in the line of his duties and on a mission for Klein connected with the tree business. The trial court, in the damage suit, directed a verdict in favor of defendant Klein, and plaintiff took an involuntary nonsuit as to him. Verdict in favor of Klein was directed because plaintiff failed to show that Wallace, at the time of the collision, was on a mission for Klein in connection with the tree business. Plaintiff moved to set aside the involuntary nonsuit, but was overruled and he did not appeal. The jury, in the damage suit, returned a verdict in favor of plaintiff and against Wallace in the total sum of $ 1250. Wallace did not appeal; did not pay the judgment, and the execution above mentioned was issued, and this garnishment proceeding commenced against the garnishee on the theory that a liability policy issued by the garnishee to Klein and on the truck involved covered the accident or collision, and that therefore the garnishee should pay the judgment against Wallace.

As stated, at the time of the collision mentioned, Wallace was Klein's foreman in Klein's tree business, but prior to this garnishment proceeding Wallace claimed that, at the time of the collision mentioned, he was using the truck without Klein's permission and was solely on a mission of his own, and so testified in the damage suit resulting in the judgment against him, and so testified in a separate suit by Mrs. Rainwater against him and Klein. And Wallace made a written statement to the same effect. But in this garnishment proceeding, Wallace, over objection, testified by deposition to the effect that at the time of the collision he was using the truck with Klein's consent and was on a mission for Klein in connection with the tree business. Wallace's evidence in the garnishment proceeding is set out at length in the majority opinion of the court of appeals to which we make reference.

Garnishee, appellant here, contends: (1) That the issue on the use of the truck by Wallace, at the time of the collision, is res adjudicata; (2) that if such question is not res adjudicata, then garnishee says that the evidence is not sufficient to make a submissible issue on the use of the car by Wallace at the time of the collision; and (3) that plaintiff's instruction No. 1 is broader than the pleadings and submitted issues not within the pleadings.

Before taking up the assignments, we should dispose of a contention made by plaintiff. It is contended that in order to recover against the garnishee, plaintiff is not required to show that Wallace, at the time of the collision, was using the truck with Klein's permission, and that at the time, Wallace was on a mission for Klein in connection with the tree business. Plaintiff argues that, upon a showing that Wallace, at the time of the collision, was using the truck with Klein's permission, then under the omnibus clause of the policy, Wallace was an insured. For the purpose of the question now in hand, we shall assume that Wallace, at the time of the collision, was using the truck with Klein's permission. Pertinent provisions of the policy follow:

"Declarations (Insertion of X indicates declaration made as a representation).

1. Name of insured -- Norman Kline, D/B as Midwest Tree Experts, 225 Plaza Theatre Bldg., Kansas City, Missouri.

Insured is: (x) Individual; () Partnership; () Corporation. Business or occupation of named insured: Tree experts.

2. Period of Policy -- April 23, 1938, at 12:01 a.m. to April 23,...