State ex rel. Continental Life Ins. Co. v. Trimble
Decision Date | 21 May 1931 |
Docket Number | 30263 |
Parties | The State ex rel. Continental Life Insurance Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals |
Court | Missouri Supreme Court |
Motion for Rehearing Overruled May 21, 1931.
Certiorari to Kansas City Court of Appeals; Opinion filed at October Term, 1930, March 31, 1931; motion for rehearing overruled at April Term, May 21, 1931.
Writ quashed.
Fred A Boxley and Elmer B. Hodges for relator.
(1) It is not necessary that the case decided by the Court of Appeals and the controlling case decided by the Supreme Court should involve the same state of facts, provided the opinion of the Court of Appeals violates the spirit of the ruling of the Supreme Court. State ex rel. v. Reynolds, 265 Mo. 88; In re Peper v. Bell, 286 Mo. 139. (2) The decision of the Court of Appeals that this motorcycle (called by it a "side-car outfit") is a "car," is in conflict with the decisions of this court holding that the words used in a contract should be given their usual and popular meaning. State ex rel. Casualty Co. v. Cox, 14 S.W.2d 602; Wendorff v. Life Ins. Co., 318 Mo 363; State ex rel. Ins. Co. v. Trimble, 297 Mo. 659; Mecartney v. Trust Co., 274 Mo. 224; Liggett v Bank, 233 Mo. 590; Renshaw v. Ins. Co., 103 Mo 595. (3) The decision of the Court of Appeals that a person riding astride the motorcycle part of a motor-tricycle is riding in the vehicle is in conflict with decisions of this court which hold that words used in contracts are to be given their usual and popular meaning. State ex rel. Casualty Co. v. Cox, 14 S.W.2d 602; Wendorff v. Life Ins. Co., 318 Mo. 363; State ex rel. Ins. Co. v. Trimble, 297 Mo. 659; Mecartney v. Trust Co., 274 Mo. 224; Liggett v. Bank, 233 Mo. 590; Renshaw v. Ins. Co., 103 Mo. 595. (4) The ruling of the Court of Appeals that since the term motor-driven car in the policy provision is preceded by the term automobile, a motor-driven car must be something other than an automobile, is in conflict with the decisions of this court holding that when there is no ambiguity there is no room for construction. State ex rel. Casualty Co. v. Cox, 14 S.W.2d 600; State ex rel. Life Ins. Co. v. Allen, 301 Mo. 631; State ex rel. Ins. Co. v. Trimble, 297 Mo. 659; State ex rel. Fire Ins. Co. v. Ellison, 269 Mo. 410; St. Louis v. Railroad, 228 Mo. 736. (5) The ruling of the Court of Appeals that no significance should be attached to the fact that the words in or on in the first policy provision are changed and restricted to the single word in in the second clause of the policy, is in conflict with the decisions of this court holding that in construing the contract the court should consider the whole contract and all the terms thereof, since one clause may modify, limit or illuminate the other. Mathews v. Modern Woodmen, 236 Mo. 326; St. Louis v. Railroad, 228 Mo. 712; Donovan v. Boeck, 217 Mo. 70; Wendorff v. Life Ins. Co., 318 Mo. 363; (6) The ruling of the Court of Appeals refusing to construe the word in as being of narrower signification than the word on is in conflict with the decision of this court that the word in is of narrower signification than the word on. Turner v. Fidelity & Casualty Co., 274 Mo. 260.
Burrus & Burrus and Mosman, Rogers & Buzard for respondents.
(1) The respondents had the right to hold as a matter of opinion, in a case of first impression, there being no previous ruling by the Supreme Court, that the side-car outfit came within the classification of motor-driven cars. State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697, 230 S.W. 642; State ex rel. Peters v. Reynolds, 214 S.W. 122. Even though the Court of Appeals may have erred as a matter of opinion, such fact does not authorize this court on certiorari to quash the opinion. State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697, 230 S.W. 642; State ex rel. Wohl v. Reynolds, 272 Mo. 588, 199 S.W. 978. A misapplication of the rules of other cases does not constitute error in this proceeding when the facts are in no way analogous to the facts of those cases. State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Trust Co. v. Reynolds, 278 Mo. 695, 213 S.W. 804. The court of appeals has applied proper rules of construction in its opinion. State ex rel. Ins. Co. v. Allen, 267 S.W. 379; Mathews v. Modern Woodmen, 236 Mo. 342. (2) The decision of the respondents in holding that the side-car outfit came within the classification of motor-driven car is not in conflict with any ruling of this court. There are no decisions of this court on such a state of facts. Outside authorities abundantly support the holding. Webster's International Dictionary; Century Dictionary; Funk and Wagnall's Dictionary; 2 R. C. L. 1167; 2 C. J. 611; Whitaker v. Hitt, 285 F. 799; Bolt v. Ins. Co., 152 S.E. 766. (3) The holding of respondents that the assured was riding in a motor-driven car is not in conflict with, but is supported by, the rulings of this court. Schmohl v. Ins. Co., 189 S.W. 597; Schmohl v. Ins. Co., 197 S.W. 60, cited with approval in Turner v. Fidelity & Casualty Co., 274 Mo. 260, 202 S.W. 1081; Bolt v. Ins. Co., 152 S.E. 766.
This case comes to the writer for an opinion on reassignment. It is an original proceeding in certiorari wherein the relator seeks to have quashed, on the ground of conflict, the opinion and judgment of the Kansas City Court of Appeals in the case of Harvey Burrus, Administrator, appellant, v. Continental Life Insurance Company, respondent, lately before that court on appeal from the Circuit Court of Jackson County. The rulings of the Court of Appeals and the facts on which they are based are shown by the opinion, which is as follows:
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