State ex rel. Maryland Cas. Co. v. Hughes

• Decision Date: 08 September 1942
• Docket Number: 37583
• Parties: State of Missouri at the relation of Maryland Casualty Company, Relator, v. William C. Hughes, Edward J. McCullen and Lyon Anderson, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

164 S.W.2d 274

349 Mo. 1142

State of Missouri at the relation of Maryland Casualty Company, Relator, v. William C. Hughes, Edward J. McCullen and Lyon Anderson, Judges of the St. Louis Court of Appeals

No. 37583

Supreme Court of Missouri

September 8, 1942

Writ quashed.

Moser Marsalek & Dearing for relator.

(1) Respondents, in the course of their opinion, found as a fact that Winton Meyer was in the employ of the Daubs when the accident occurred, but overruled the relator's contention that the policy did not cover the accident, holding that the words "not employed by the assured" were ambiguous and must be construed to mean "not regularly employed by the assured;" and that since Winton was not a regular employee of the Daubs, but was only occasionally employed by them, his injury was covered by the policy. In thus construing the policy, and in substituting the words "not regularly employed" for the words "not employed" used in the policy, the respondents contravened controlling opinions of this court holding that where the language of the contract is plain, there is no room for construction, and that the court is not at liberty to interpolate into the plain language of a policy words which do not appear therein. Turner v. Fidelity & Casualty Co., 274 Mo. 260, 202 S.W. 1078; State ex rel. Natl Life Ins. Co. v. Allen, 301 Mo. 631, 256 S.W. 737; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363 370, 1 S.W.2d 99. (2) Where the opinion of the Court of Appeals fails to give common words their natural meaning, but enlarges or restricts the language under the guise of construing the contract, or substitutes new and different words for those used by the parties, the opinion is subject to quashal on certiorari as in conflict with the controlling opinions of this court, holding that in the absence of ambiguity, the language of a policy is not subject to the rules of construction, but must be enforced as written. State ex rel. Mut. Life Ins. Co. v. Shain, 344 Mo. 276, 126 S.W.2d 181; State ex rel. Mut. Benefit Assn. v. Shain, 334 Mo. 920, 68 S.W.2d 685. (3) In overruling relator's second contention, respondents found as a fact that the petition in Winton Meyer's suit "does show the existence of the relation of master and servant between the assureds and Winton Meyer, and the judgment in that suit was apparently given on that theory." Respondents further found that in the prior suit "the court in arriving at its judgment necessarily found that the relation of master and servant or employer and employee existed between insureds and Winton Meyer." According to respondents' opinion, the fact established in the prior suit was that Winton was an employee in the conventional sense, but respondents failed to give effect to that fact in determining the issues in this suit. Respondents' opinion conflicts with the controlling opinions of this court, rendered in the following cases: Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330; St. Joseph v. Union Ry. Co., 116 Mo. 636, 22 S.W. 794; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; Tomnitz v. Employers' Liability Assur. Corp., 343 Mo. 321, 334, 121 S.W.2d 745; Soukup v. Employers' Liability Assur. Corp., 341 Mo. 614, 620, 108 S.W.2d 86.

Burnett, Stern & Liberman and Edwin Grossman for respondents.

(1) This court cannot on certiorari review the decision of respondents in construing the language in the insurance policy unless such construction is in conflict with the construction placed by this court on like or similar language in a last-controlling opinion of this court, or unless the language is plain, unambiguous and susceptible of but one interpretation. State ex rel. Met. Life Ins. Co. v. Allen, 337 Mo. 525, 85 S.W.2d 469; State ex rel. Prudential Ins. Co. v. Shain, 344 Mo. 623, 127 S.W.2d 675. (2) This court has never construed the language "persons not employed" as used in an insurance policy. Therefore, in determining whether the language was ambiguous and subject to construction by the Court of Appeals, this court will look to the decisions in other states construing the same or similar language. The decision of the Court of Appeals is in harmony with decisions in other states construing the same language. The Court of Appeals properly determined that the language was susceptible of more than one interpretation and properly construed the language as meaning persons regularly employed, as distinguished from persons casually employed. State ex rel. Met. Life Ins. Co. v. Allen, 337 Mo. 525, 85 S.W.2d 469; State ex rel. Met. Life Ins. Co. v. Hostetter, 338 Mo. 589, 92 S.W.2d 122; Gracey v. St. Louis, 213 Mo. 384, 111 S.W. 1159; Eisen v. John Hancock Mut. Life Ins. Co., 230 Mo.App. 312, 91 S.W.2d 81; Auchincloss v. U.S. Fidelity & Guar. Co., 190 A.D. 6, 179 N.Y.S. 454; Sovereign Camp Woodmen of the World v. Craft, 208 Ala. 467, 94 So. 831; Southlands Co. v. City of San Diego, 211 Cal. 646, 297 P. 521; Braley Motor Co., Inc., v. Northwestern Casualty Co., 184 Wash. 26, 49 P.2d 911; Weiss v. Employers' Liability Assur. Corp., 226 N.Y.S. 732; Shapiro v. Employers' Liability Assur. Corp., 248 N.Y.S. 587; Flanders v. Benefit Assn. of Ry. Employees, 226 Mo.App. 143, 42 S.W.2d 973; Bayersdorfer v. Massachusetts Protective Assn., Inc., 20 F.Supp. 489; State ex rel. Prudential Ins. Co. v. Shain, 344 Mo. 623, 127 S.W.2d 675; State ex rel. Ocean Accident & Guar. Corp., Ltd., v. Hostetter, 341 Mo. 488, 108 S.W.2d 17. (3) The Court of Appeals properly determined that the construction of the language "persons not employed," as used in the policy of insurance, was not involved or adjudicated in the Winton Meyer suit and that the judgment in the Winton Meyer suit was not res judicata on the coverage of the policy. The decision of the Court of Appeals on that point does not conflict with the last controlling decisions of this court. State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W.2d 756; 34 C. J., secs. 1322, 1332, 1333, 1463, pp. 911, 927, 928, 1032; St. Joseph v. Union Ry. Co., 116 Mo. 636, 22 S.W. 794, 38 Am. St. Rep. 626; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330.

OPINION

Leedy, J.

Certiorari to quash the record and opinion of the St. Louis Court of Appeals in Daub et al. v. Maryland Casualty Co., 148 S.W.2d 58. That action was based on a public liability policy issued by Maryland Casualty Co., to plaintiffs therein, A. F. Daub and Anna Daub, his wife. Said policy insured the Daubs against liability imposed by law upon them for damages on account of bodily injuries, including death resulting therefrom, "accidentally suffered or alleged to have been suffered by any person or persons not employed by the Assured, while within or upon" certain described premises occupied by the Daubs as their residence. A judgment was obtained against the Daubs by one Winton Meyer, a minor, on account of personal injuries sustained by him while on said premises, and under circumstances presently to be noticed. A suit by Anna Meyer, Winton's mother, for loss of services was compromised and settled. Relator denied liability under said policy, and the Daubs sued and recovered judgment against the relator for $ 2,544.50, being the amount of said judgment, the sum paid in settlement of the mother's claim, and attorneys' fees, which judgment was affirmed by the Court of Appeals.

The Court of Appeals overruled relator's assignment of error based on the refusal of the trial court to direct a verdict for it. It was contended that the evidence showed that Winton Meyer, at the time of his injury was employed by the Daubs within the meaning of the policy, and was thus excluded from the coverage thereof. The facts in connection with this point are stated in the opinion of the Court of Appeals, as follows: "The evidence shows that Anna Meyer worked for plaintiffs at their home during the year 1936, commencing work in the spring of that year. She did general housework. She did not work all the time, but worked only on Saturdays. She usually came to the home between eight and nine o'clock in the morning and worked until noon or one o'clock. Plaintiffs gave her $ 1.40, $ 1.50, or $ 1.60, and her lunch, each day she work. On one occasion Mrs. Meyer asked Mrs. Daub if she did not have some work for Winton to do to keep him out of mischief, saying that she did not have to pay him anything. Mrs. Daub replied that maybe he could rake some leaves. Thereafter, on one Saturday morning Mrs. Meyer brought Winton along with her and he raked some leaves that morning. He worked at raking the leaves until about eleven o'clock. Mrs. Daub gave him a quarter and his lunch. On a Saturday a few weeks afterwards Winton grubbed out a stump in the back yard. It took him until lunch time to get the stump out. Mrs. Daub gave him $ 1.50 and his lunch. Later, on Thursday, November 19, 1936, Mr. Daub drove to the Meyer home to get Winton to rake leaves. He found Winton out in the yard and asked him if he wanted to rake some leaves. Winton went in the house and reported to his mother and came out with his rake and got in the car. That was about 9:30 or 10 o'clock in the morning. When they arrived at the Daub home Winton commenced raking the leaves in the front yard. While he was raking the leaves, Mr. Daub was assembling ladders on the porch in order to take leaves out of the gutters and put strainers in the downspouts to prevent the leaves from going through. When he had the ladders up, he asked Winton to stand on the bottom ladder to steady it and hold it in place. Winton got on the ladder and while standing there Mr. Daub threw some leaves out of a gutter in such a way that they struck Winton in the face and at the same time did something that shook the ladder and caused Winton to lose his balance so that he fell from the...