State ex rel. McCubbin v. McMillian

• Decision Date: 18 July 1961
• Docket Number: No. 30474,30474
• Citation: 349 S.W.2d 453
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri at the Relation of Oral H. McCUBBIN, Administrator of the Estate of Edward Pace, Deceased, and Houston Fire & Casualty Company, a corporation, Relators, v. Hon. Theodore McMILLIAN and Hon. Franklin Reagan, Judges of the Circuit Court of the City of St. Louis, Missouri, Respondents.

Page 453

349 S.W.2d 453

STATE of Missouri at the Relation of Oral H. McCUBBIN,

Administrator of the Estate of Edward Pace,

Deceased, and Houston Fire & Casualty

Company, a corporation, Relators, v. Hon. Theodore McMILLIAN and Hon. Franklin Reagan, Judges of

the Circuit Court of the City of St. Louis,

Missouri, Respondents.

No. 30474.

St. Louis Court of Appeals, Missouri.

July 18, 1961.

Motion for Rehearing or to Transfer to Supreme Court Denied

and Opinion Modified on Court's Own Motion Oct. 17, 1961.

Harry M. James, Wilbur C. Schwartz, Joseph Nessenfeld, Schwartz, James & Sweet, St. Louis, for relators.

Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, John S. Marsalek, St. Louis, for respondents.

BRADY, Commissioner.

This is an original proceeding in prohibition wherein a writ is prayed for prohibiting respondents from exercising jurisdiction over the persons of relators and from hearing and adjudicating a cross-claim filed in an action pending in the Circuit Court of the City of St. Louis. The function of the petition for the writ and return are well known. Together with a reply, they form the pleadings in a prohibition proceeding, Secs. 530.030, 530.040 RSMo 1949, V.A.M.S. The pleadings in the instant case are lengthy and involved, and a better understanding of the factual situation can be had if they are summarized, showing regard while doing so for the rule that all material matters not denied by the return are deemed admitted, State ex rel. Burton v. Montgomery, 316 Mo. 658, 291 S.W. 472, and, since the relators filed no reply, that the allegations of new matters contained in the return are deemed admitted, State ex rel. Hannigan v. Kirkwood, 342 Mo. 242, 114 S.W.2d 1026.

As so summarized, the facts are that Edward Pace and Dr. Leland Jensen had an automobile accident in Lawrence County, Missouri, on February 8, 1953, in which Ray Snyder, a passenger in the Jensen automobile, was injured and Pace was killed. Snyder and Jensen were residents of the City of St. Louis, and Pace was a resident of Houston, Texas, and was passing through Missouri when the accident occurred. American Automobile Insurance Company, a resident of the City of St. Louis, hereinafter referred to as American, had a policy of liability insurance with Jensen whereby it agreed to pay on his behalf all sums not to exceed $25,000 which he should become legally obligated to pay because of bodily injuries sustained by any one person arising out of the use of the automobile he was operating at the time of the collision. Pace had a policy with Houston Fire & Casualty Company, hereinafter referred to as Houston, a corporation organized under the laws of Texas, whereby Houston agreed to pay on his behalf all sums not to exceed $50,000 which Pace should become legally obligated to pay because of bodily injuries sustained by any one person arising out of the use of the automobile which Pace was operating at the time of the collision. This policy was entered into, executed and issued in the State of Texas, and Houston is a resident of Texas but is licensed to do business in Missouri and has filed its duly executed power of attorney appointing and authorizing the Superintendent of Insurance of this state to acknowledge and receive process in any action against it instituted in this state as provided by Sec. 375.210 RSMo 1949, V.A.M.S. By the terms of its policy with Pace, Houston agreed to defend and investigate any suit against him and undertook McCubbin's defense in Snyder's damage suit and was in charge and control of that defense, and could make such negotiation and settlement of any claim filed against Pace or his estate as it deemed expedient. Upon application to the Probate Court of Lawrence County, that court appointed the relator McCubbin as administrator for Pace. Snyder filed his action for damages arising out of the collision in the Circuit Court of the City of St. Louis, and named as defendants Jensen and McCubbin as administrator of Pace's estate. This case resulted in a verdict for Snyder against Jensen and McCubbin in the amount of $35,000. The judgment remained unsatisfied for more than thirty days, and Snyder then filed an action in the Circuit Court of the City of St. Louis under the provisions of Secs. 379.195 and 379.200 RSMo 1949, V.A.M.S. to reach and apply the insurance money provided in the policies to the satisfaction of his judgment. The petition is before us as Exhibit A, and was filed against Jensen, McCubbin, American and Houston. Jensen was never served and has never entered his appearance in the suit. McCubbin was served with process in Lawrence County, and Houston was served through the Department of Insurance. American is a resident of the City of St. Louis and was served in the City of St. Louis. Houston undertook the defense of the equity action also, and has remained in control of that defense, in the conduct of which it has confined its appearances and those of McCubbin to special appearances for the purpose of raising the questions of jurisdiction and venue with which we are dealing, and filed their motions to dismiss the equity suit, Exhibits B and C. Snyder sought to compel American and Houston each to pay to him the amount due on the aforesaid judgment of $35,000, and in addition prayed for the sum of $3,500 for vexatious refusal to pay as against Houston, and for the sum of $2,500 for vexatious refusal to pay as against American. American, by amended answer, Exhibit D, filed July 2, 1957, joined a cross-claim against Houston and McCubbin, and affirmatively alleged that on October 17, 1955, five days after the equity action was filed, it had paid Snyder $17,500, or one-half of the judgment, together with interest thereon. In its cross-claim contained in its amended answer, American alleged that should judgment be rendered against it for any amount in excess of what it had paid, American should be awarded a judgment in like amount against Houston and McCubbin. On July 5, 1957, Snyder filed his motion for judgment against American on the grounds that there were no issues of fact for determination between Snyder and American. On July 22, 1957, Houston and McCubbin, still appearing specially only, filed their verified motions, Exhibits E and F respectively, to dismiss American's cross-claim. Snyder then dismissed his action against Houston and McCubbin, and on the same day, July 23, 1957, entered into an agreement with Houston under terms of which Houston paid Snyder $10,000 and interest, by way of compromise of Snyder's claim against Houston and McCubbin, which sum, under that agreement, constituted payment in full by Houston to Snyder of all sums due him under the judgment action over and above what American had paid, and by doing so, recognized the direct obligation on its part to Snyder arising out of the judgment in the damage suit action. On August 2, the trial court sustained Snyder's motion for judgment against American, and American was ordered to pay Snyder the sum of $7,500 and interest, and on August 23, Snyder acknowledged satisfaction of that judgment. The return also alleged that in addition to the liability of Houston to Snyder and to American by reason of the cross-claim, Houston was rendered liable by the laws of Texas for the payment of Snyder's judgment and for the amount prayed in the cross-claim by American. The respondents further averred that since. Houston, by its attorney, took full charge and control of McCubbin's defense in Snyder's damage suit and presented evidence and cross-examined witnesses at that trial, Houston was and is bound by the judgment in that action and for its payment with the same force and effect as if Houstion had been named a party defendant to that cause. The motions of Houston and McCubbin to dismiss the cross-claim set up various grounds therefor, which will be particularly discussed later herein, and upon submission to the trial court were overruled by the Hon. Theodore McMillian, who was thereafter succeeded in the Division in which the cause was pending by the Hon. Franklin Reagan, both being judges of the Circuit Court of the City of St. Louis.

Relators then filed their motion to strike portions of the respondents' return, and we granted both parties time to file suggestions in support, opposition, and reply to the motion. By their motion, the relators sought to strike extensive portions of the return, and since we overruled that motion in part, and sustained it in part, it will serve no useful purpose to again set out in detail the matters sought to be stricken. Suffice it to say that we granted relators' motion to strike from the return those allegations dealing with the application by McCubbin to the Probate Court of Lawrence County for letters of administration. We denied the motion to strike the allegations of the return dealing with Houston's investigation and defense of the damage suit, and its right to negotiate a settlement of that action, Houston's control of McCubbin's defense in the equity action, the allegations of the return regarding its payment to Snyder of $10,000 on the same day Snyder dismissed his equity action as to Houston, the allegations that by such payment it recognized the existence of a direct obligation by it to Snyder for the payment of Snyder's judgment, that Houston was liable under the laws of Texas for the payment of Snyder's judgment and also for American's cross-claim, and that by its actions in the defense of McCubbin on Snyder's damage suit Houston is bound, as a consequence thereof, by the judgment the same as if Houston had been named a party to that action. The case was thereupon set for brief and argument, and was submitted during the January docket.

It will first be noted that of the four defendants named in Snyder's action under Sec. 379.200, supra, two are residents of the City of St. Louis: Jensen, who was never served, and American. One defendant is a resident of Lawrence County,...