State ex rel. Western Automobile Insurance Company v. Trimble

• Court: Missouri Supreme Court
• Writing for the Court: JAMES T. BLAIR, J.
• Citation: State ex rel. Western Automobile Insurance Company v. Trimble, 297 Mo. 659, 249 S.W. 902 (Mo. 1923)
• Decision Date: 02 April 1923
• Parties: THE STATE ex rel. WESTERN AUTOMOBILE INSURANCE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

249 S.W. 902

297 Mo. 659

THE STATE ex rel. WESTERN AUTOMOBILE INSURANCE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

April 2, 1923

Certified from Kansas City Court of Appeals.

Record quashed.

M. D Aber for relator.

(1) "We do not think there is any warrant in law to construe a contract of insurance by any other rule than that used to construe other contracts made by persons competent to enter into them." State ex rel. v. Ellison, 269 Mo 410, 420. To same effect: Renshaw v. Ins. Co., 103 Mo. 604; Lovelace v. Ins. Co., 126 Mo. 111; Springfield &c. Co. v. Ins. Co., 151 Mo. 90; Const. Co. v. St. Louis, 256 Mo. 332, 339; Imperial Fire Ins. Co. v. Coos, 151 U.S. 463. (2) And the rule for construing other contracts is that words used must be taken in their plain, ordinary, everyday meaning, as used and understood by the community at large. Pavey & Orr v. Burch, 3 Mo. 447; Caldwell v Layton, 44 Mo. 220; Cochran v. Stewart, 63 Mo. 424; Callaway v. Henderson, 130 Mo. 86; Donovan v. Boeck, 217 Mo. 70, 87; St. Louis v. Railroad, 228 Mo. 712, 736; Liggett v. Bank, 233 Mo. 590, 601; Mecartney v. Trust Co., 274 Mo. 224, 238. (3) And the word "money" in its usual meaning, signifies gold, silver or paper money used as a circulating medium of exchange, and does not include notes, bonds, evidences of debt or other property. Pullman v. Pullman, 150 S.W. 829. And this is the definition given by all the lexicographers. (4) The language in Mathews v. Modern Woodmen, 236 Mo. 326, 342-3, is all obiter, used merely as dicta, and no part of the decision, upon very different facts, and is not authority, and not the last controlling decision of this court upon the subject and not so intended. In rendering the decision, it never entered the mind of the judge writing the opinion or of those concurring that the rule of construction stated above should be abrogated, or the prior cases cited be overruled. The effect of such remarks in a decision are shown by the particular construction given it in the following cases by Lamm, J., who wrote the Mathews case, State ex rel. v. St. Louis, 241 Mo. 238; Greene Co. v. Lydy, 263 Mo. 91; Skillman v. Clardy, 256 Mo. 322; Pocoke v. Peterson, 256 Mo. 518; Bender v. Weber, 250 Mo. 561; Lorenzen v. Railroad, 249 Mo. 191. These decisions, all of this court, recognized two fixed principles determinative of the correct use of a judicial decision as a precedent when considered by a court. Under these the court must know (a) what the question is which is then before it for determination, and (b) what was in fact determined by the decision invoked as a predecent. Black on Judicial Precedents, sec. 11, p. 49; State ex rel v. Becker, 235 S.W. 1028. Moreover, absent ambiguities, as here, even if the quoted language of the Mathews case were not obiter, it is wholly inconsistent with the decision of this court in banc in the long-subsequent case of State ex rel. v. Ellison, 269 Mo. 410, 420. (5) It has been the practical construction by the learned bar of this State in the past that when the indemnity contract provided, as in this case, that a judgment must be paid in money, that method was followed. Hoagland Wagon Co. v. London Guarantee & Accident Co., 201 Mo.App. 490; Mears Mining Co. v. Maryland Casualty Co., 162 Mo.App. 178; Brinkman v. Western Auto Ins. Co., 205 Mo.App. 71. And numerous cases outside the state indicate the same understanding of the law, a type of which is Glatz v. Kroeger Bros., 183 N.W. 684. (6) It is only where the contract is such as to make the liability absolute and not a mere contract of indemnity which by its terms is made to depend upon "an actual trial of the issues on the merits" that the judgment rendered binds the indemnitor. Strong v. Ins. Co., 62 Mo. 289, 295; Gantt v. Ins. Co., 68 Mo. 503, 539; Garrison v. Transfer Co., 94 Mo. 130, 137; Railroad v. News Co., 151 Mo. 373, 390.

Nick M. Bradley and W. E. Suddath for respondents.

(1) It is not the province of the Supreme Court to determine whether the Court of Appeals erred in its application of the rules of law to the facts stated in its opinion, but only whether upon these facts it announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar state of facts. State ex rel. v. Allen, 243 S.W. 841. (2) When the language of the policy is open to two constructions the one most favorable to the insured will be adopted, as the language is that of the insurer. Drucker v. Western Indemn. Co., 223 S.W. 991; Mathews v. M. W. A., 236 Mo. 326, 342; Paper Co. v. Fidelity Co., 104 Mo.App. 167; Grocer Co. v. Fidelity Co., 30 Mo.App. 428; Banta v. Casualty Co., 134 Mo.App. 226; Walton v. Ins. Co., 162 Mo.App. 216, 329; Brittenham v. W. O. W., 180 Mo.App. 523, 533; Brown v. Ins. Co., 197 Mo.App. 327; Hartman v. C. B. & Q., 192 Mo.App. 217, 277. And should be construed strictly against the company where they tend to narrow the range and limit the principal obligation. Renn v. Sup. Lodge K. P., 83 Mo.App. 447; Foglesong v. M. W. A., 121 Mo.App. 553; Dezell v. Fidelity Co., 176 Mo. 265; Batten v. M. W. A., 131 Mo.App. 384; Mathews v. M. W. A., 236 Mo. 326, 342; Brittenham v. W. O. W., 180 Mo.App. 523, 533; Brown v. Ins. Co., 197 Mo.App. 327; Hartman v. C. B. & Q., 192 Mo.App. 277. (3) Money in its popular sense is employed as synonymous with property; anything having a conventional use as a medium of exchange or a measure of value, or a measure of value alone. Webster's Int. Dictionary, "Money"; 27 Cyc. 820; Randall v. Rich, 11 Mass. 498; In re Miller, 48 Cal. 165; Skinner v. Moore, 19 N.C. 138; State v. McFetridge, 84 Wis. 473; In re Blackstone, 95 N.Y.S. 980. (4) Payment by note, if so accepted, is an absolute payment and a complete discharge of obligation. Commisky v. McPike, 20 Mo.App. 82; Shotwell v. Moore, 42 Mo.App. 669; Montgomery Co. v. Auchley, 103 Mo. 492, 502. (5) Judgment of the court was final, clear and concise, showed clearly all issues and matter adjudicated and was not subject to be varied by parol. State ex rel. v. Orahood, 27 Mo.App. 496; State to use v. Stinebrake, 90 Mo.App. 280; Ruoff v. Fitzgerald, 128 Mo.App. 639; Cook v. Penrod, 111 Mo.App. 128, 136; State ex rel. v. Miles, 149 Mo.App. 638. (6) Where one is bound to protect another from liability he is bound by the result of the litigation to which such other party is a party. Murch Bros. v. Cas. Co., 190 Mo.App. 490, 516; Strong v. Ins. Co., 62 Mo. 295; Railroad v. News Co., 151 Mo. 373, 390.

JAMES T. BLAIR, J. Graves, David E. Blair and Ragland, JJ., concur; White, J., dissents; Walker, J., dissents in separate opinion, in which Woodson, C. J., concurs.

OPINION

In Banc.

JAMES T. BLAIR, J.

-- Certiorari. The writ brings here the record of the Kansas City Court of Appeals in Ben Pickel v. Western Automobile Insurance Company. The question presented is whether the decision of the Court of Appeals conflicts with previous controlling decisions of this court respecting the construction of contracts of insurance.

It appears from the opinion of the Court of Appeals that the action before it is upon a contract of indemnity insurance issued to plaintiff by defendant, relator here. While driving the automobile covered by the policy Pickel collided with another automobile and injured Hanna and Walker. Pickel notified relator and it later declined to "assume any liability in the case." Walker and Hanna sued Pickel and recovered judgment. Relator continued to deny liability and did not appear. The judgment for Walker was for $ 600, and $ 93.40 costs. Hanna's judgment was for $ 500, and $ 10.35 costs. The costs Pickel paid in cash. Attorneys' fees in the sum of $ 300 "plaintiff paid by giving his unsecured promissory note" the Court of Appeals states. "In payment and satisfaction of the two judgments plaintiff gave to each of the respective holders thereof his promissory note for the amount of the judgment, which note was duly secured by deed of trust on land belonging to plaintiff, whereupon the two judgments were released upon the margin of the records thereof." Pickel then sued relator upon the indemnity policy to recover the amounts of the judgments and expenses of litigation. There was a judgment for Pickel for the full amount. The company appealed.

The Court of Appeals held that the defense under the policy that Pickel was intoxicated when the collision occurred had been settled by the verdict rendered on conflicting evidence. The principal question in the Court of Appeals and the one the decision upon which is contended to have conflicted controlling decisions of this Court, grew out of the refusal of the trial court to give an instruction in the nature of a demurrer to Pickel's evidence. The company, the opinion states, contended in the Court of Appeals "that the policy is not one of indemnity for liability." The Court of Appeals held this was the correct construction of the policy. Of this holding relator does not complain. The Court of Appeals then took up the question whether the course pursued by Pickel gave him a right of action on the policy for "loss resulting from liability.' It sustained Pickel's right to sue. This is the particular ruling said to be out of harmony with decisions of this court. In deciding this the Court of Appeals referred to and quoted freely from the policy and the by-laws of relator and founded its ruling upon their construction. Under the decisions ( State ex rel. Kansas City v. Ellison, 281 Mo. l. c 667, 220 S.W. 498 et seq. and cases cited; State ex rel. Raleigh Inv. Co. v. Allen, 242 S.W. l. c. 77; State ex rel. Natl. Council v. Trimble, 239 S.W. l. c. 467), the contract and by-laws are thereby drawn into the opinion by reference and are for...