Simpson v. American Auto. Ins. Co.
| Decision Date | 15 September 1959 |
| Docket Number | No. 30176,30176 |
| Parties | Leon SIMPSON (Plaintiff), Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, a Corporation (Defendant), Respondent, Travelers Indemnity Company, a Corporation (Defendant), Appellant, and Grocers Terminal Warehouse, Inc., a Corporation (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Arnot L. Sheppard, Gentry, Bryant & Sheppard, St. Louis, for appellant Simpson.
John F. Evans, Evans & Dixon, St. Louis, for appellants Travelers Indemnity Co. and Grocers Terminal Warehouse, Inc.
John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.
This action was instituted by Leon Simpson under the Declaratory Judgments Act, Section 527.010 et seq. RSMo 1949, V.A.M.S., for a declaration and determination of the respective rights, liabilities, duties and legal relations among plaintiff and the following defendants: American Automobile Insurance Company, Travelers Indemnity Company and Grocers Terminal Warehouse, Inc. (The above named defendants will be referred to hereinafter as American, Travelers and Grocers.) This action grew out of sums of money and costs paid in settlement of a case brought by William Ogle against defendant, Grocers. In the instant action the trial court rendered findings and judgment against Simpson, Travelers and Grocers and they appeal.
The controversy which gave rise to this declaratory judgment action had its beginning when William Ogle, an employee of Aero Drayage Company, hereinafter referred to as Aero, sustained an injury while loading a truck owned by Aero and operated by Ogle.
As stated, Ogle was in the employ of Aero and in the course of his employment on April 28, 1955, he drove a truck owned by Aero to Warehouse No. 4 of Grocers at Second and Convent Streets in the City of St. Louis for the purpose of obtaining a load of merchandise to be delivered elsewhere. Ogle backed the truck up to the loading dock where three employees of Grocers, one of whom was plaintiff, Leon Simpson, brought the merchandise from the warehouse to the truck and Ogle placed the merchandise in the truck. All of the merchandise had been loaded, except one carton, and the truck had been completely filled, except for a small space at the rear of the truck. Ogle in an attempt to load the last carton in the space left in the truck, stood on the truck near or upon the center ridge pole and the side rail and when in that position he fell to the ground and was injured.
On August 12, 1955, a suit was filed by Ogle against Grocers claiming damages in the sum of $75,000 for personal injuries sustained. In the petition filed in said suit it was alleged by Ogle that the defendant Grocers, 'its agents, servants, and employees negligently and carelessly pushed, shoved, and thrust a box of merchandise into the body of the said truck and against the side of said truck striking the person of the plaintiff (Ogle) and shaking and jostling the said truck causing plaintiff to fall to the ground' and be injured. No place in his petition does Ogle name or identify the employee or employees who performed the alleged negligent act. It is admitted that Leon Simpson, plaintiff in the instant action, was an employee of Grocers and was present on the platform helping in the loading of said truck on the occasion in question.
At the time of the accident and injury to Ogle there was in force a policy of insurance issued by Travelers to Grocers known as a comprehensive general liability policy of insurance. The terms of this policy are immaterial to a disposition of this appeal and for this reason we omit them, except to point to a provision in the policy which provided that in the event any payment was made under the terms of the policy Travelers should be subrogated to all of Grocers' rights of recovery therefor against any person or organization.
There was also in force at the time of the accident and injury to Ogle a policy of insurance issued by American referred to by the parties as a public liability insurance policy and described in the policy as a 'Combination Automobile Policy.' In the Declarations under appears the following: 'Arthur C. Reichardt, Flora Reichardt, Shirley Reichardt Doing Business as Aero Drayage Co. and Grocers Warehouse, Inc. * * *' The address given is '3401 Chouteau Ave.' and the occupation is described as 'Warehouse.' The coverage provisions of American's policy material to a disposition of this appeal are as follows:
'Insuring Agreements
'1. Coverages.
'Coverage A.--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
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* * * 'II. Defense, Settlement, Supplementary Payments. As respects the insurance afforded by the other terms of this policy under coverages A and C the Company shall:
'(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
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* * *
'III. Definition of Insured. With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. The insurance with respect to any person or organization other than the named insured does not apply:
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'(b) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.
'IV. Automobile Defined * * *
'(a) Automobile. Except where stated to the contrary, the word 'automobile' means:
* * *
* * *
The exclusion provisions of said policy material to a disposition of this appeal are as follows:
'Exclusions
'This policy does not apply:
* * *
* * *
'(c) under coverages A and B, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen's compensation law;
* * *
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'(e) under coverage A, to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law.'
In addition to filing suit against Grocers, Ogle filed a claim for Workmen's Compensation against his employer, Aero. American was asked by Grocers to assume the defense of Ogle's action against it and to assume the responsibility for any judgment that might be rendered against it. American refused to assume the defense of Grocers in Ogle's action and disclaimed any responsibility to Grocers under its policy of insurance. At the request of Grocers, Travelers assumed the defense of Grocers in the suit brought by Ogle.
Thereafter Ogle's suit was compromised and settled and a stipulation for dismissal of Ogle's action was signed by the attorneys for plaintiff and defendant Grocers and filed in court. The action was dismissed with prejudice to the rights of plaintiff and at the costs of defendant. Travelers paid Ogle $5,390 on behalf of Grocers in settlement of said suit and in addition paid $325 to its attorneys and $28.65 court costs. In addition, Aero paid Ogle $1,000 in settlement of his compensation claim.
Following the aforesaid settlement of Ogle's suit by Travelers in behalf of Grocers, a suit was filed by Grocers against Leon Simpson seeking to recover the sum of $5,743.65, the amount of money paid out in the settlement of Ogle's suit. This suit was filed by Travelers, through its attorneys. The attorneys for Travelers had an understanding with the defendant, Leon Simpson, that they would retain counsel to defend him in the mentioned suit by Grocers. In this suit by Grocers it was alleged that defendant, Leon Simpson, 'negligently and carelessly pushed, shoved and thrust a box of merchandise against William J. Ogle, directly causing him to fall from the side of said truck * * *.' Grocers further alleged the filing of Ogle's suit against Grocers and the settlement thereof and prayed for judgment against Leon Simpson in the sum of $5,743.65, the amount paid out by Travelers in settlement of Ogle's suit. American was called upon to assume the defense of the aforesaid suit against Leon Simpson and to pay whatever judgment, if any, that should be rendered against Leon Simpson. American refused to accept the defense of said suit or to pay any judgment rendered against Leon Simpson.
Thereafter, Leon Simpson filed the declaratory judgment action that is the subject of this appeal. In the petition in the instant action, Leon Simpson set out all of the facts and events we have related aforesaid and in addition alleged that American, by reason of its contract of insurance issued to Grocers, plaintiff, Leon Simpson, and Grocers became additional insureds, 'wherefore American became legally obligated to defend the case of Ogle v. Grocers Terminal Warehouse, Inc., filed in the Circuit Court of the City of St. Louis * * *; and is perforce now legally obligated to...
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