State ex rel. Government Emp. Ins. Co. v. Lasky

• Decision Date: 26 May 1970
• Docket Number: No. 33613,33613
• Citation: 454 S.W.2d 942
• Parties: STATE of Missouri at the Relation of GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Corporation, Relator, v. Honorable Herbert LASKY, Judge of the Circuit Court of the County of St. Louis, State of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 942

454 S.W.2d 942

STATE of Missouri at the Relation of GOVERNMENT EMPLOYEES

INSURANCE COMPANY, a Corporation, Relator, v. Honorable Herbert LASKY, Judge of the Circuit Court of the

County of St. Louis, State of Missouri, Respondent.

No. 33613.

St. Louis Court of Appeals, Missouri.

May 26, 1970.

Morris, Wuestling & James, St. Louis, for relator.

Robertson, De Voto, Wieland & Lange, St. Louis, for respondent.

DOERNER, Commissioner.

In an action for personal injuries brought by a resident plaintiff against a nonresident defendant resulting from an accident which occurred in the nonresident's state, is the contractual obligation of the defendant's liability insurer to defend and indemnify the defendant a 'debt' owing to defendant and as such subject to attachment? That is the new and novel question presented to us in this original proceeding in prohibition.

The essential facts involved in this proceeding are these: As Mrs. Louise Taussig, a resident of St. Louis County, Missouri, was in the act of entering her son's parked car in Newport, rhode Island, on April 5, 1968, it was struck and collided with by an automobile being operated by Jerome D. Slack, a resident of Newport. Mrs. Taussig filed an action against Slack in the Circuit Court of St. Louis County on April 16, 1969 to recover for her personal injuries. Based on an affidavit as to Slack's nonresidency in Missouri, an attachment and summons was issued to the sheriff of Cole County commanding him to attach the lands, tenements, goods, chattels, rights, moneys, credits, evidences of debt and effects of Slack, and to summon as garnishee the relator, Government Employees Insurance Company of Washington, D.C. The summons and attachment were served on the Superintendent of the Division of Insurance, Department of Business and Administration, on April 22, 1969, who forwarded them to the relator on the same day.

Relator is a foreign corporation, with its principal place of business in the District of Columbia, and is authorized to do business in Missouri. Prior to the date of the accident relator had issued a policy of liability insurance to Slack, either in Rhode Island or in Virginia. So far as the record before us shows the policy is in the usual form and obligates the relator to defend any action brought against Slack arising out of his operation of his automobile, and to indemnify the insured from any resulting judgment obtained against him.

A summons, together with a copy of the garnishment in aid of attachment, was sent by registered mail to the defendant Slack on April 30, 1969, with the request that it be receipted for only by the defendant, but was returned on June 2, 1969. However, in the meantime, on May 16, 1969, defendant, appearing specially and for the purposes of the motion only, filed a motion to dissolve, vacate and quash the attachment and summons under and by virtue of which plaintiff was attempting to obtain jurisdiction of the court over defendant, and as grounds for his motion alleged that the attachment and summons '* * * has been improperly filed and served, is unlawful and is contrary to the Constitution of the United States of America, the Constitution of the State of Missouri, the Statutes of the State of Missouri, and the common law of the State of Missouri.' Defendant's motion was presented and argued by the parties on May 22, 1969, and taken under submission by the respondent Judge, who requested that memoranda in support and in opposition to the motion be submitted, with which request both parties complied. The next day, May 23, 1969, plaintiff filed interrogatories directed to the relator as garnishee, but according to the photostatic copy of the minutes submitted to us these interrogatories were never answered by the relator, nor did the plaintiff undertake to compel the relator to do so. See Civil Rules 90.12 and 90.13, V.A.M.R. An alias summons for service by registered mail was sent to the defendant on June 27, 1969, and his return receipt therefore was filed on July 10, 1969. On July 15, 1969, respondent entered an order overruling the defendant's motion to dissolve, vacate and quash the summons and attachment. Thereafter relator filed its petition for our writ of prohibition, and we issued our preliminary rule.

As our statement of the facts makes clear, in the action pending before respondent it was the defendant who moved to dissolve, vacate and quash the summons and attachment served upon the garnishee, the relator here. The relator filed no such motion, nor did it answer the interrogatories propounded by the plaintiff in that action. In his brief respondent maintains that under that state of the record he never had an opportunity to rule on the decisive question now presented, and that the relator's petition is therefore premature. As stated in State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303, 305, cited by respondent, 'The general rule is that an application for a writ of prohibition will not be considered unless a plea to the jurisdiction has been filed and overruled in the lower court, or the inferior court has been asked in some form, without avail, to refrain from further proceeding or to dismiss the same. * * *' But our courts have never recognized that as a hard and fast rule and there are many well-recognized exceptions to it. State ex rel McEntee v. Bright, 224 Mo. 514, 123 S.W. 1057; State ex rel Missouri Pac. Ry. Co. v. Williams, 221 Mo. 227, 120 S.W. 740. One of such well-recognized exceptions is when the return of the respondent judge affirms his jurisdiction or denies that he acted in excess of his jurisdiction, for it follows that it would have been useless for the relator to make his attack in the first instance. State ex rel Henderson v. Cook, 353 Mo. 272, 182 S.W.2d 292; State ex rel Missouri Pac. Ry. Co. v. Williams, supra; State ex rel City of Mansfield v. Crain, Mo.App., 301 S.W.2d 415. In the present case the respondent was asked, without avail, to refrain from further proceeding, albeit by the defendant rather than the garnishee, the relator here. The reason assigned by the defendant and passed upon by the respondent, as shown by the law memoranda presented to him, which are before us, is precisely the same point now presented to us by the relator, that is, whether the contractual obligation of the relator as defendant's liability insurer to defend and indemnify the defendant is a 'debt' owing to defendant and as such subject to attachment. That the relator as garnishee holds no other property or effects of the relator, and that the sole purpose of the attachment is to secure in rem jurisdiction of defendant Slack by attacking the defendant's rights under the liability policy issued by relator to Slack is clear both from relator's petition and respondent's return, as well as by the answers of respondent's counsel to questions propounded by the court during oral argument. Concededly it would have been the better practice for relator to have itself contest the respondent's jurisdiction by an appropriate motion, or to have answered, in response to the plaintiff's interrogatories, that it was not indebted to defendant, which denial plaintiff undoubtedly would have traversed by pleading relator's purported indebtedness under the liability policy issued to defendant. But to now quash our preliminary writ as premature would be of no avail to respondent or to either of the parties, and would only result in unnecessary delay, for by his ruling on defendant's motion and by his return respondent has clearly indicated what his ruling would be if relator was now required to follow either of the foregoing procedures to raise the very question now presented. And since any further deferment may be detrimental to the interests of the plaintiff because of the applicable statute of limitations, we are of the opinion that the substantive question should be decided without further delay. State ex rel City of Mansfield v. Crain, supra; State of Missouri ex rel Hilleary and Partners, Ltd. v. Kelly, Mo.App., 448 S.W.2d 926.

Respondent also argues that prohibition is not the proper remedy to test his jurisdiction of the action pending before him for the reason that, '* * * where a court has jurisdiction of the subject-matter of an action, and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its ruling that it has jurisdiction, if wrong, is simply error, for which prohibition is not the proper remedy. * * *' State ex rel Fabrico v. Johnson, 293 Mo. 302, 239 S.W. 844, 847--848. That rule is not applicable here, however, for respondent's ruling that he had jurisdiction was not based upon his determination of a disputed issue of fact, but rather upon a controverted question of law.

In support of his contention that the relator's contractual obligation to defend and indemnify the defendant is a debt subject to attachment respondent relies in the main on two cases decided by the Court of Appeals of New York, Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312, and Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669. In Seider, two plaintiffs, Mr. and Mrs. Seider, residents of New York, were injured in an automobile accident in Vermont, allegedly through the negligence of one Lemiux, a resident of Quebec. The Seiders brought suit in New York against Lemiux (as well as against one Roth, the operator of a third car involved in the accident) and caused an attachment to be served on Hartford Accident and Indemnity Company, which had issued a policy of liability insurance to Lemiux in Canada. Lemiux moved to vacate the attachment, and, when his motion was overruled, appealed. The question presented was whether Hartford's contractual obligation to defend and indemnify Lemiux was a 'debt' within the meaning of the controlling New York statutes, CPLR 5201 and 6202, and hence subject to attachment. The former section defined a...