State Farm Fire & Cas. Co. v. Powell

• Decision Date: 30 October 1975
• Docket Number: No. 9806,9806
• Citation: 529 S.W.2d 666
• Parties: STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Charles and Ilene POWELL, Respondents.
• Court: Missouri Court of Appeals

Page 666

529 S.W.2d 666

STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Charles and Ilene POWELL, Respondents.

No. 9806.

Missouri Court of Appeals, Springfield District.

Oct. 30, 1975.

Albert C. Lowes, David G. Beeson, Buerkle, Buerkle & Lowes, Jackson, for appellant.

Weber Gilmore, Gilmore & Gilmore, Sikeston, for respondents.

Before BILLINGS, C.J., and STONE and TITUS, JJ.

BILLINGS, Chief Judge.

This is an appeal from dismissal of an action for a declaratory judgment in which plaintiff State Farm Fire and Casualty Company sought to have an insurance policy issued to defendants Charles and Ilene Powell declared void because of alleged material misrepresentations in the application for the policy. Plaintiff contends the trial court's dismissal was an abuse of discretion and once having assumed jurisdiction the circuit court was duty-bound to rule the issues. We modify the judgment to specify the dismissal to be without prejudice and as so modified affirm.

Trial was to the court sitting without a jury. Plaintiff's evidence tended to show that its policy, insuring personal property, inter alia, against burglary, was issued to defendants by reason of false answers to questions contained in the application for the policy. Defendants' evidence tended to show that plaintiff's agent was fully advised of a prior fire loss and policy cancellation of defendants and defendant Charles Powell signed the application in blank in the agent's office. Shortly after the issuance of the policy defendants made claim for loss by reason of a burglary. Several months later plaintiff filed this action, and thereafter defendants instituted a separate suit against plaintiff to recover under the policy.

The trial judge made an entered findings of fact and conclusions of law in which he determined the dispute between the parties involved a fact issue which should be decided by a jury and plaintiff had an adequate legal remedy, defensively, in the pending suit brought be defendants. Judgment of dismissal followed.

Initially, we observe that in its brief the plaintiff charges the trial court 'ducked the issues', 'shirked its duty', and 'passed the buck'. Such vitriolic utterings leveled against a learned and experienced trial judge have no place in an appellate brief and, while shedding heat, cast no light on the matters for review. True, judges are not immunized against error, but castigation of the type quoted is hardly a vaccine.

As noted, plaintiff contends the trial court, once it had assumed jurisdiction and heard evidence, was precluded from dismissing the action. However, we believe our Supreme Court fully refuted plaintiff's position in City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411 (1942), wherein it stated at 414:

'One section of the act (now Rule 87.07) provides as follows: 'The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.' This section contemplates that when 'the court has heard all of the facts and has considered all of the legal relations of the parties, it may then refuse to render a declaration of rights if it seems to the court that the basis for relief has been insufficiently established in the exercise of a sound judicial discretion." (emphasis added).

Plaintiff next asserts Rule 87.07 must be interpreted to mean that a circuit court can dismiss an action for declaratory judgment only if a declaration 'would not terminate the uncertainty or controversy giving rise to the proceeding.' Plaintiff cites no cases where this reading of Rule 87.07 (or § 6 of the Uniform Declaratory Judgments Act which is identical in wording, § 527.060, RSMo 1969) has been adopted, and we find his point to be without merit. Declaratory judgment is to a large extent a discretionary remedy (see generally, E. Borchard, Declaratory Judgments, 293--315 (2d ed. 1941); W. Anderson, Actions for Declaratory Judgments §§ 382--400 (2d ed. 1951)); and Missouri courts, like those of most other jurisdictions, have declined to apply the theory exclusio unius est inclusio alterius to Rule 87.07 and recognize that dismissal may be granted on other grounds including availability of an adequate remedy at law and the absence of a justiciable issue. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943); Harris v. State Bank & Trust Co. of Wellston, 484 S.W.2d 177 (Mo.1972); State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25 (banc 1943); Glick v. Allstate Ins. Co., 435 S.W.2d 17 (Mo.App.1968); and cases cited at Uniform Declaratory Judgments Act (U.L.A.) § 6.

Having determined that the circuit court has discretionary power to deny declaratory relief where such remedy is inappropriate, we now consider plaintiff's claim the trial court abused its discretion in this case. The trial court gave two reasons for its dismissal: 1) factual issues had been raised which should be decided by a jury, and 2) plaintiff had an adequate remedy at law, defending in defendants' action to recover under the policy.

The circuit court was incorrect in its assumption that existence of factual issues justified dismissal of an action for declaratory relief. It is well settled that, where necessary to declare legal rights, factual issues may be determined in a declaratory judgment action and a jury may be used for this purpose if requested by either party. Rule 87.06, State ex rel. U.S. Fire Ins. Co. v. Terte, supra; M.F.A. Mut. Ins. Co. v. Quinn, 259 S.W.2d 854 (Mo.App.1953); Crollard v. Northern Life Ins. Co., 240 Mo.App. 355, 200 S.W.2d 375 (1947).

However, we conclude the second reason given by the trial court, that plaintiff could obtain adequate relief by raising the alleged invalidity of the insurance policy as a defense in defendants' action at law, is sufficient justification for dismissal of this declaratory judgment action. This issue was considered in a similar factual situation by our Supreme Court in State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176...