State ex rel. Boyer v. Stussie, No. 40113
| Court | Missouri Court of Appeals |
| Writing for the Court | KELLY; In this original proceeding in Prohibition, Arthur E. Boyer, Jr., the relator, seeks an order prohibiting the Honorable Harry J. Stussie; STEPHAN, P. J., and STEWART |
| Citation | 592 S.W.2d 269 |
| Parties | STATE of Missouri ex rel. Arthur E. BOYER, Jr., Relator, v. Honorable Harry J. STUSSIE, Respondent. |
| Docket Number | No. 40113 |
| Decision Date | 11 December 1979 |
Page 269
v.
Honorable Harry J. STUSSIE, Respondent.
Page 270
Frank J. Maginn, St. Louis, for relator.
Jay G. Newquist, Roberts, Heneghan & Coffelt, W. Monro Roberts, Jr., St. Louis, for respondent.
KELLY, Judge.
In this original proceeding in Prohibition, Arthur E. Boyer, Jr., the relator, seeks an order prohibiting the Honorable Harry J. Stussie, Judge, Division No. 2 of the Circuit Court of St. Louis County, from setting aside an order sustaining relator's motion for summary judgment. His motion was filed in a declaratory judgment action wherein Fireman's Fund Insurance Company is the plaintiff, and relator and one Loretta B. Ditz are the named defendants. We issued improvidently we think, our Preliminary Rule in Prohibition and now, after the issues are joined and the matter briefed and argued, we quash said Preliminary Rule in Prohibition and dismiss relator's petition at relator's cost.
The facts are that the relator was involved in an automobile collision with Loretta B. Ditz on May 19, 1975. At the time of this collision Mrs. Ditz was operating a 1973 Plymouth automobile. Mr. Boyer sustained severe injuries in the collision, including the loss of his lower left leg. On November 11, 1975, he instituted an action for damages for those injuries against Mrs. Ditz in the Circuit Court of St. Louis County.
On December 5, 1975, Fireman's Fund Insurance Company, (hereinafter referred to as Fireman's Fund) instituted a declaratory judgment action against both Mr. Boyer and Mrs. Ditz for a declaration of the rights, duties and other legal relations between the parties. Fireman's Fund sought to be relieved of all duties and liabilities under two policies of insurance it had issued, one to William H. Ditz, the Ditz's son, and the other to Mrs. Ditz and her husband, William Ditz. Fireman's Fund also sought an order restraining the defendants from filing or prosecuting any action upon said policies of insurance. The petition alleged that Fireman's Fund had issued two policies of automobile liability insurance covering the automobile being operated by Mrs. Ditz in the collision with the motor vehicle being operated by Mr. Boyer on May 19, 1975. One policy # Z3617075 was issued to William H. Ditz as the named insured and afforded $25,000.00 coverage for personal injury liability for each person. The other policy # Z2344007 was issued to Mrs. Ditz and her husband, William Ditz, as named insureds and afforded them $50,000.00 coverage for personal injury liability for each person. It further alleged that the Plymouth automobile was owned by William H. Ditz on the date of the collision.
On June 21, 1976 relator filed a Motion to Dismiss the petition for declaratory judgment. He filed an amended Motion to Dismiss on September 4, 1976, alleging that a certified registration certificate from the Motor Vehicle Bureau of the Missouri Department of Revenue, dated July 1, 1976, showed title to said vehicle to be in Mr. and
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Mrs. Ditz, not in their son, William H. Ditz. On September 25, 1976, relator filed his initial Motion for Summary Judgment and on October 14, 1976, the insurance company filed its First Amended Petition for declaratory judgment seeking the same relief prayed for in the original petition. On May 3, 1977, relator filed an Amended Motion for Summary Judgment and notified the insurance company that the motion would be called up for argument on July 12, 1977.The question to be decided in the three count First Amended Petition for Declaratory Judgment, reduced to its simplest terms, is whether the insurance company would be required to defend Mrs. Ditz or would be held liable for any judgment Mr. Boyer might receive in his lawsuit for damages arising out of the collision of May 19, 1975.
Prior to filing its declaratory judgment action the insurance company had offered Mr. Boyer the $25,000.00 coverage afforded under the policy issued to William H. Ditz in settlement of Mr. Boyer's claim.
In Count I of its petition for declaratory judgment the insurance company sought a declaration that it owed Mrs. Ditz no defense in Mr. Boyer's suit for damages and that it would not be liable for any judgment rendered against Mrs. Ditz in that suit by reason of the provision in the omnibus clause of the policy issued to Mrs. Ditz and her husband because the Plymouth was a "non-owned automobile," titled to her son, William H. Ditz, and furnished for the regular use of Mrs. Ditz and was thereby excluded from coverage under the terms of the policy.
In Count II, the insurance company alleged alternatively, that if Mrs. Ditz and her husband were the owners of the Plymouth on the date of the collision, it nevertheless owed Mrs. Ditz no defense and should not be held liable under the policy in which they were named insureds because coverage of the Plymouth under the policy had been deleted by an endorsement of August 2, 1974.
In Count III the insurance company sought an order restraining Mr. Boyer from proceeding with the trial of his action for damages against Mrs. Ditz until the rights and legal relationships between the parties had been decided in the declaratory judgment action.
On May 3, 1977, Mr. Boyer filed his Amended Motion for Summary Judgment. Between July, 1977 and November 8, 1977, various written notices calling the motion for hearing were filed by both the insurance company and Mr. Boyer, but no hearings on the motion were held.
On November 8, 1977 counsel for the insurance company notified Mr. Boyer's counsel that his motion for summary...
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Kessinger Hunter Management Co. v. Davis, No. WD
...summary judgment does not require oral argument, and failure to request argument waives it. Rule 74.04; State ex rel. Boyer v. Stussie, 592 S.W.2d 269, 273 (Mo.App.1979). Jackson County Local Rule 33.5, provides that a request for oral argument may be denied at the discretion of the court. ......
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Zaiser v. Miller, Nos. 12759
...court must make a declaration of the rights of the parties, and include such declaration in its judgment. State ex rel. Boyer v. Stussie, 592 S.W.2d 269, 272 (Mo.App.1979). Making such declarations in findings of fact or conclusions of law is not enough, as such findings and conclusions are......
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Kilgore v. Kilgore, WD34451
...material fact appears and that the opposing party is entitled to judgment as a matter of law. See, e.g., State ex rel. Boyer v. Stussie, 592 S.W.2d 269 The record in this case indicates that genuine issues as to material facts do indeed exist and that neither party is entitled to judgment a......
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Orion Security Inc. v. Board of Police Commissioners
...that Rules 41 through 101 apply to and govern all civil actions in the Circuit Courts of the state." State ex rel. Boyer v. Stussie, 592 S.W.2d 269, 273 (Mo.App. Based on the authorities cited, we conclude Orion had to give Appellants at least five days' written notice of the March 2, 2000,......
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Kessinger Hunter Management Co. v. Davis, No. WD
...summary judgment does not require oral argument, and failure to request argument waives it. Rule 74.04; State ex rel. Boyer v. Stussie, 592 S.W.2d 269, 273 (Mo.App.1979). Jackson County Local Rule 33.5, provides that a request for oral argument may be denied at the discretion of the court. ......
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Zaiser v. Miller, Nos. 12759
...court must make a declaration of the rights of the parties, and include such declaration in its judgment. State ex rel. Boyer v. Stussie, 592 S.W.2d 269, 272 (Mo.App.1979). Making such declarations in findings of fact or conclusions of law is not enough, as such findings and conclusions are......
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Kilgore v. Kilgore, WD34451
...material fact appears and that the opposing party is entitled to judgment as a matter of law. See, e.g., State ex rel. Boyer v. Stussie, 592 S.W.2d 269 The record in this case indicates that genuine issues as to material facts do indeed exist and that neither party is entitled to judgment a......
-
Orion Security Inc. v. Board of Police Commissioners
...that Rules 41 through 101 apply to and govern all civil actions in the Circuit Courts of the state." State ex rel. Boyer v. Stussie, 592 S.W.2d 269, 273 (Mo.App. Based on the authorities cited, we conclude Orion had to give Appellants at least five days' written notice of the March 2, 2000,......