Royle Mining Co. v. Fidelity & Casualty Co.

• Decision Date: 04 December 1911
• Citation: 142 S.W. 438,161 Mo. App. 185
• Court: Missouri Court of Appeals
• Parties: ROYLE MINING CO. v. FIDELITY & CASUALTY CO. OF NEW YORK.

142 S.W. 438

161 Mo. App. 185

ROYLE MINING CO. v. FIDELITY & CASUALTY CO. OF NEW YORK.

Springfield Court of Appeals. Missouri.

December 4, 1911.

On Motion for Rehearing, January 8, 1912.

1. COURTS (§ 231)—APPELLATE JURISDICTION —CONSTITUTIONAL QUESTIONS.

Allegations that to hold the defendant liable in the action would be a violation of Const. Mo. art. 2, § 15, and Const. U. S. art. 1, § 10, providing that no state shall pass any law impairing the obligation of a contract, and also contrary to Const. U. S. Amend. 14, will not raise a constitutional question so as to give jurisdiction to the Supreme Court of an appeal, under the rule that the question to be decided, and not the result of the decision, confers the jurisdiction.

2. INSURANCE (§ 388)—EMPLOYER'S LIABILITY—SCOPE OF POLICY—OBJECTIONS—WAIVER.

Where insurer, under an employer's liability policy, assumes the defense of an action against the insured for injuries to a servant, without any reservation or notice to the insured that it did not intend to waive a claim that the accident was not within the policy, it will be deemed to have waived such objection.

3. INSURANCE (§ 388)—EMPLOYER'S LIABILITY POLICY—SCOPE—ESTOPPEL—PREJUDICE.

Where plaintiff, when sued for injuries to a servant, surrendered the defense of the suit

to defendant, pursuant to an employer's liability policy, and defendant unsuccessfully defended the suit, the presumption of prejudice necessary to sustain an estoppel against defendant from thereafter claiming that the accident was not within the policy was not rebuttable.

4. EVIDENCE (§ 378)—LETTERS—PRELIMINARY PROOF.

Letters alleged to have been written by defendant to plaintiff and not shown to have been deposited in the post office, stamped, and addressed to plaintiff, or personally delivered to it, are properly excluded.

5. PRINCIPAL AND AGENT (§ 178)—NOTICE TO AGENT—EFFECT.

The rule that notice to an agent is notice to his principal does not apply where the agent is acting merely in a ministerial capacity, since while the agent is so engaged he does not act as a substitute for the principal, nor is there imposed on him the duty of communicating to the principal the knowledge acquired.

6. EVIDENCE (§ 118)—"RES GESTÆ."

The term "res gestæ" in the law of evidence means a collection of primary facts constituting the necessary and immediate field of a judicial inquiry, within which field all the facts are competent evidence.

7. EVIDENCE (§ 242)—RES GESTÆ—STATEMENTS OF AGENT.

Statements of an agent, made in relation to the business being transacted at the time and in regard to which he is authorized to act, constitute part of the res gestæ, if said or done while the transaction is passing, and are admissible against the principal.

8. EVIDENCE (§ 271)—SELF-SERVING DECLARATIONS.

Self-serving declarations, including communications between principal and agent or between the agent and subagent, are not admissible on behalf of the principal.

9. EVIDENCE (§ 151) — RELEVANCY — UNCOMMUNICATED INTENTION.

On an issue whether defendant insurance company took charge of litigation against plaintiff with or without notice that it reserved the right to claim that it was exempt from liability under the policy, evidence of its uncommunicated purposes and intentions concerning the defense of the litigation were irrelevant.

10. ESTOPPEL (§ 53)—INTENT TO DECEIVE.

Conduct creating an estoppel may exist without an intent to deceive, if it is such as to lead a reasonable man to act thereon.

11. INSURANCE (§ 388)—EMPLOYER'S LIABILITY POLICY—SCOPE—ESTOPPEL.

Where defendant indemnity insurance company was notified of litigation which plaintiff claimed was covered by the policy, defendant was bound after reasonable investigation to assert its claim that the case was not within the policy, if it expected to do so, and, after assuming the conduct of the litigation against plaintiff, would be estopped to claim that the case was not covered, unless the burden of the litigation was assumed with an express reservation of its right to deny liability.

12. INSURANCE (§ 646)—ESTOPPEL—BURDEN OF PROOF.

Where an estoppel against defendant insurance company was affirmed and relied on by the plaintiff as a ground of recovery, the burden of proof was on plaintiff to establish each constituent fact of the estoppel.

13. INSURANCE (§ 645)—PLEADING—GENERAL DENIAL—SCOPE.

Where plaintiff in an action on a policy alleged and relied on an estoppel as a ground for recovery, defendant under its general denial was entitled to prove any fact that tended to show that plaintiff's alleged estoppel never existed.

14. INSURANCE (§ 646)—INDEMNITY POLICY—ESTOPPEL—BURDEN OF PROOF.

Plaintiff, in an action on an employer's liability policy, alleged that, because defendant had unsuccessfully defended an action for injuries, it was estopped to deny that the claim was within the policy, to which defendant filed a general denial. Held that, when plaintiff had shown that defendant had defended the action as required by the policy, plaintiff established a prima facie case, and the burden shifted to defendant, and, when defendant had proved that it took charge of the litigation with notice to plaintiff of reservation of its exempted rights, the burden then again shifted to plaintiff to show that it had no understanding that defendant was claiming its exemption when it took charge of the defense.

15. TRIAL (§ 253)—INSTRUCTIONS—IGNORING EVIDENCE.

Where, in an action on an employer's liability policy, plaintiff claimed that defendant was estopped to deny that the accident was within the policy, because of defendant's having taken charge of the litigation of the claim against plaintiff, while defendant claimed and offered evidence that before taking charge of such litigation it notified plaintiff that it would do so only on reservation of its right to claim exemption, an instruction, requiring the jury to find for plaintiff irrespective of whether defendant had given to plaintiff any such notice before taking charge of the litigation, was erroneous.

16. INSURANCE (§ 669) — CONFLICTING INSTRUCTIONS.

Where, in an action on an indemnity policy, plaintiff claimed that defendant was estopped to deny that the accident was within the policy by reason of having taken charge of the litigation against plaintiff, while defendant claimed that it took charge of such litigation reserving the right to deny liability under the policy, an instruction, authorizing a recovery if after the litigation was commenced defendant became informed of the nature of the liability and took charge of the defense, whether defendant gave notice of the reservation of its right under the policy or not, and an instruction predicating

liability on a finding that after an amended petition in the original litigation was filed defendant took charge of and continued the defense of the action without notifying plaintiff that it would not be liable, were conflicting and erroneous.

17. APPEAL AND ERROR (§ 1031)—CONFLICTING INSTRUCTIONS—PREJUDICE—PRESUMPTIONS.

Where instructions are conflicting, prejudice will be presumed.

18. TRIAL (§ 295)—INSTRUCTIONS—FORM AND SUBSTANCE.

Each instruction given need not cover all the issues, if the series as a whole are correct and the instructions are so framed as to be harmonious and not calculated to mislead.

19. INSURANCE (§ 641)—WAIVER—PLEADING.

A waiver relied on in an action on an insurance policy should be pleaded in a petition and not in the reply.

On Motion for Rehearing.

20. APPEAL AND ERROR (§ 774)—BRIEFS—COMPLIANCE WITH RULES.

Court of Appeals Rule 18 (156 Mo. App. xvi, 122 S. W. vii) provides that briefs shall contain, apart from the argument and discussion of authorities, a statement of the points relied on, etc., and that any brief failing to comply "may be disregarded" by the court. Rule 21 provides that for a failure to comply with specified rules, including rule 18, the court, when the case is called for hearing, will dismiss the appeal, or, at the option of the respondent, continue the cause at the cost of the party in default. Held, that a motion to "affirm" because of appellant's noncompliance with rule 18 in the preparation of its brief as distinguished from a motion to "dismiss the appeal or disregard the brief," was improper.

21. APPEAL AND ERROR (§ 759)—BRIEFS— PREPARATION—MODE—ASSIGNMENT OF ERROR.

The Court of Appeals has no rule requiring appellant's briefs to contain an assignment of errors, rule 18 (156 Mo. App. xvi, 122 S. W. vii) merely requiring that the brief contain, separate and apart from the argument and discussion of authorities, a statement in numerical order of the points relied on, together with a citation of authorities under each point.

22. APPEAL AND ERROR (§ 761)—BRIEFS—FORM.

Appellant's brief, after the statement, contained the following: "Appellant urges as grounds for reversal and presents to this court the following points and authorities"—under which the points relied on for reversal with authorities underneath were printed in black type, and then after this, under the heading "Appellant's Argument," was printed the argument in support of the questions raised, and concluded with the contention that because of the errors pointed out the judgment should be reversed. Held, that the brief sufficiently separated the points relied on from the argument or discussion of authorities, as required by Court of Appeals Rule 18 (156 Mo. App. xvi, 122 S. W. vii).

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by the Royle Mining Company against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 126 Mo. App. 104, 103 S. W. 1098.

H. W. Currey and Percy Werner, for appellant. Haywood Scott, for respondent.

NIXON, P. J.

This suit was commenced in the circuit court of Jasper county by respondent against appellant upon an indemnity policy of...