State ex rel. Manchester Ins. & Indem. Co. v. Moss, 58833

• Decision Date: 12 May 1975
• Docket Number: No. 58833,58833
• Citation: 522 S.W.2d 772
• Parties: STATE ex rel. MANCHESTER INSURANCE AND INDEMNITY COMPANY, Relator, v. Honorable Herbert K. MOSS, Judge, Circuit Court of Jefferson County, Respondent.
• Court: Missouri Supreme Court

Page 772

522 S.W.2d 772

STATE ex rel. MANCHESTER INSURANCE AND INDEMNITY COMPANY, Relator, v.Honorable Herbert K. MOSS, Judge, Circuit Court of Jefferson County, Respondent.

No. 58833.

Supreme Court of Missouri, En Banc.

May 12, 1975.

Goldenhersh & Newman, Leo M. Newman, St. Louis, for relator.

Briney, Welborn & Spain, Joe C. Welborn, Bloomfield, for respondent.

SEILER, Judge.

In this original proceeding in prohibition, relator-intervenor seeks to prohibit respondent judge from dismissing its cross claim for indemnity against defendant.

The plaintiffs in the underlying action are insured by the relator for liability and uninsured motorist coverage.On October 31, 1972, plaintiff Mrs. Harris had a collision with a utility pole as a result of the alleged negligence of Nelson Tenney, who had no physical contact with the Harris vehicle.Mrs. Harris, asserting she had been injured by the alleged negligence of Tenney, filed suit against him for damages.The relator was advised of the pendency of the suit, and upon learning that the defendant Tenney might be uninsured, filed a motion to intervene, to which plaintiffs consented.Relator also filed a cross claim against defendant, generally alleging that if it be determined that Tenney was negligent and thereby caused Mrs. Harris' injuries, and that Tenney was uninsured, then relator would be obligated to pay the amount of Tenney's obligation and should be indemnified by him.Both plaintiff and defendant moved to dismiss the cross claim, which motion was sustained.Relator filed a petition for writ of prohibition in this court and we issued a provisional writ; we now quash said writ.

There is no question but that relator is entitled to intervene in the plaintiff's case inasmuch as the result could bind relator on the issue of the uninsured defendant's tort liability and damages, State ex rel. State Farm Mut. Auto. Ins. Co. v. Craig, 364 S.W.2d 343(Mo.App.1963).Nor is there any question that an uninsured motorist carrier is entitled to be reimbursed from the proceeds of any recovery had by plaintiff against the uninsured motorist, limited to the amount of payment it makes to the insured by reason of the uninsured motorist coverage, Sec. 379.203, subd. 4, RSMo 1969, V.A.M.S.The issue in this case concerns the right of the relator to cross claim for indemnity directly against the defendant.

Indemnity is a right which inures to a person who has discharged a duty which is owed by him, but which, as between himself and another, should have been discharged by the other, so that if the second does not reimburse the first, the second is unjustly enriched to the extent that his liability has been discharged.Restatement, Restitution, Sec. 76;Lee Way Motor Freight v. Yellow Transit Freight Lines, 251 F.2d 97(10th Cir.1957);see alsoKansas City Southern Ry. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1(Mo.1960).The doctrine of indemnity applies only where an identical duty owed by one is discharged by another, American Mutual Liability Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178, 182(1963).This principle is stated in 42 C.J.S.Indemnity§ 3, p. 566, where indemnity is distinguished from subrogation as follows:

'Both doctrines are based on the principle that a benefit has been conferred on defendant at the...