Roberts v. State Farm Ins. Co.

• Decision Date: 16 June 1947
• Docket Number: No. 20897.,20897.
• Parties: E.F. ROBERTS, RESPONDENT, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

203 S.W.2d 508

E.F. ROBERTS, RESPONDENT, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., A CORPORATION, APPELLANT.

No. 20897.

Kansas City Court of Appeals. Missouri.

Opinion delivered June 16, 1947.

Appeal from Circuit Court of Schuyler County. — Hon. Walter A. Higbee, Judge.

REVERSED.

Waldo Edwards and D.L. Dempsey for appellant.

(1) The policy of insurance in this case is to be read and construed as a whole, and all the provision thereof given effect. In other words, the liability of the defendant is not to be determined upon the basis of the language of any one clause of the policy considered alone. Soukop v. Employers Liability Assurance Corp., 341 Mo. 614 (banc), 108 S.W. 2d 86-92 (8-12); State ex rel. Mutual Benefit, Health and Accident v. Trimble, 68 S.W. 2d 685-687 (1-2) (Mo.); 44 C.J.S., p. 1196, Sec. 298. (2) The policy here is not ambiguous, nor are its terms. The policy therefore is to be read and construed to give effect to the obvious intention of the parties. There is, therefore, no room for the application of the rule that in case of ambiguity that construction of the policy most favorable to the assured will be adopted. Eyring v. Kansas City Life Ins. Co., 129 S.W. 2d 1086, 234 Mo. App. 328; Brannaker v. Prudential Ins. Co., 150 S.W. 2d 498, 236 Mo. App. 239; Glenn v. Missouri Ins. Co., 179 S.W. 2d 644-646 (1-2-3) (Mo. App.). (3) The respective rights of the plaintiff and defendant under this policy are therefore to be determined by the reading of the whole policy and not by reading of "Coverage C" alone. Louis Hemel v. State Farm Mutual Automobile Insurance Co., Supreme Court of Louisiana, Case No. 38225. (At the date of preparation of this Brief, this case not printed in advance sheets.) (4) The facts in this record do not support the judgment of the trial court awarding plaintiff judgment for One Hundred Dollars ($100) for attorney fees. Vol. 15, Sec. 6040, Missouri Annotated Statutes.

L.F. Cottey and Allen Rolston for respondent.

In principle, this case resembles the case of Floea v. Iowa State Ins. Co., 32 S.W. 2d 111. See also, Prindle v. Fidelity & Casualty Co. of N.Y., 233 S.W. 252; 33 C.J. 111; Floea v. Iowa State Ins. Co., 32 S.W. 2d 111; Godfrey et al. v. St. Paul Fire & Marine Ins. Co., 232 S.W. 231, syllabus 1; Prindle v. Fidelity & Casualty Co. of N.Y., 233 S.W. 252; Roseberry v. American Benevolent Ass'n, 142 Mo. App. 552, l.c. 559; State ex rel. v. Allen, 267 S.W. 379, l.c. 381; St. Louis Police Relief Ass'n v. American Bonding Co., 196 S.W. 1148.

SPERRY, C.

E.F. Roberts instituted suit to recover damages to his ¾ ton Dodge Pick-up truck, on an insurance policy issued by the State Farm Mutual Automobile Insurance Company. Trial was to the court without a jury and from a judgment for plaintiff in the amount of $251.10, for damages to the truck, and for $100 attorney's fees, defendant appeals.

Defendant contends that the loss was shown, by the evidence, as due to a cause excluded from the policy coverage.

Plaintiff pleaded the policy and its issuance, and that "* * * * * such automobile, by reason of cause unknown to plaintiff, other than that said automobile was heavily loaded and being driven over bad and muddy roads, became torn, damaged and broken in its motor and engine and all parts of such automobile connected with such motor and engine. * *"

Defendant pleaded certain "Exclusions" that are provided in the policy, and denied liability.

The policy was introduced in evidence and is styled "National Standard Combination Automobile Policy." On the page which contained a description of the vehicle insured and a statement of the various risks covered, together with premium charges and limits of liability, there appeared the following, in heavy type: "The insurance afforded is only with respect to such and so many of the following coverages as are indicated by special premium charge or charges. The limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of the policy having reference thereto."

There follows:

" Coverages

A. Bodily injury liability.

B. Property damage liability.

C. Comprehensive.

"(Includes fire, theft and other damage.)

D. Fire, windstorm, theft, etc.

E. Collision-Eighty (80%) per cent.

F. Collision-movable objects.

G. Collision-deductible.

H. Emergency road service, bail bond expense."

Premium charges are shown in connection with "A," "B," "C," and "E."

On the next page it is stated that the company "Does hereby agree with insured * * * subject to the limits of liability, exclusions, conditions, and other terms of the policy.

" INSURING AGREEMENTS

* * * * * * *

"Coverage C — Comprehensive Loss or of Damage to the Automobile, Except by Collision. To pay for any loss or of damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collison of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset."

Immediately below the portion devoted to "Insuring Agreements" in similar type, although the policy is folded at this point, appears the following:

" EXCLUSIONS

"This policy does not apply * * * *

(i) Under coverages C, D, E, F, and G, to any damage to the automobile which is due and confined to wear and tear, freezing, mechanical or electrical breakdown or failure, negligent repair or service, or loss of tools or repair equipment, unless such damage or loss is the direct result of a theft, covered by this policy, of the entire automobile; * * *"

The remainder of this page is devoted to a section denominated "Conditions."

This entire sheet is devoted to stating the terms of the contract with particularity: "Insuring Agreements," "Exclusions," and "Conditions," the title of all sections appearing in identical size type and the printed matter appearing under "Exclusions" and "Conditions" being in type similar in appearance to that used under the section designated "Insuring Agreements."

The evidence is fairly summarized in plaintiff's brief, and is as follows:

"On the morning of February 6, 1946, while the aforesaid policy of insurance was in full force and effect, respondent's employee Harbison started out in the truck to deliver a 2110-pound load of corn and oats to a customer living in the country. The truck was in good condition at the time. The road was hilly and muddy. On the way, from some undisclosed cause the truck developed a knock and lost power rapidly; it wouldn't pull, it stopped and had to be restarted frequently. Harbison nursed it along and finally got it back to Queen City about noon under its own power, but obviously in bad condition.

"Respondent and his wife had planned to use the truck that afternoon to drive to Kirksville. However, its condition was such that they stopped at a neighborhood garage operated by witness Conner to inquire whether it was capable of making the trip. Conner told them it might get them to Kirksville if they drove slowly, so they started, driving slowly. But after a mile from town the noise in the truck's engine became so alarming they turned around and came back to the garage. Conner heard them coming; said the truck had a sound `like a blacksmith hitting an anvil.'

"Conner's examination disclosed that the motor `had developed damage all at once;' that the pan was half full of babbitt, melted into little particles' which had come out of the bearings between the connecting rods and the crankshaft; that one piston was cracked. Repair of the damage required the installation of a new motor in the truck, at a cost of $125.10, which was shown to be reasonable. There was no other evidence as to the nature or extent of the damage, and no expression of opinion or any other showing as to what caused it. Appellant neither offered any evidence on its own behalf nor cross-examined any of respondent's witnesses."

It is plaintiff's position that he made out a prima facie case, under the terms of coverage "C," when he offered substantial evidence tending to prove that the motor became damaged in some manner other than by collision; and that it was then incumbent on defendant to prove that the damage resulted from a cause excluded from coverage. In support of his contention in this respect he cites Godfrey v. St. Paul Fire and Marine Ins. Co., 232 S.W. 231, wherein it is held that plaintiff made a prima facie case by proving the policy and a loss, and that if defendant claimed the loss was due to a cause excluded from coverage it must prove such affirmative defense. That decision follows the general rule. 33 C.J. 111; Gannon v. Laclede Gas Light Co., 145 Mo. 502, l.c. 516; Gilpin v. M.K. & T. Ry. Co., 197 Mo. 319, l.c. 325. However, plaintiff's evidence in this case not only proved the damage but also tended to prove the cause of the damage. Such evidence is uncontradicted and positive, and constitutes all of the evidence there is on the question.

The driver of the truck testified to the effect that he drove it daily prior to the occasion when it became damaged; that on this date he drove it from plaintiff's place of business to deliver a load of feed to a customer; that, when he started on the trip, the truck was "All right so far as I could see." The record discloses the following with reference to the damage complained of and how it occurred:

"Q. What was the condition of the truck? A. I don't know. It just got so it wouldn't run hardly. It had a knock.

Q. When did you discover it? A. Out...