State v. Fireman's Fund Ins. Co.

• Decision Date: 16 June 1922
• Docket Number: No. 23356.,23356.
• Citation: 294 Mo. 615,242 S.W. 934
• Parties: STATE ex rel. FIREMAN'S FUND INS. CO. et al. v. TRIMBLE et al., Judges.
• Court: Missouri Supreme Court

242 S.W. 934

294 Mo. 615

STATE ex rel. FIREMAN'S FUND INS. CO. et al. v. TRIMBLE et al., Judges.

No. 23356.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Certiorari by the State, on the relation of the Fireman's Fund Insurance Company and another, to review action of Kansas City Court of Appeals, Francis H. Trimble, Ewing C. Bland, and Henry L. Arnold, Judges, in the case of Hines against the relators. Judgment quashed.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for relators.

W. B. Norris and John S. Boyer, both of St. Joseph, for respondents.

Scarritt, Jones, Seddon & North, of Kansas City, amid. curiæ.

GRAVES, J.

Certiorari to the Kansas City Court of Appeals. The action out of which this proceeding grows was the case of Hines v. Fireman's Fund Insurance Company, and Louis S. Stubbs. The insurance company, supra, issued to one Charles E. Quinn of St. Joseph an insurance policy in the sum of $315. Stubbs was an agent for the company. After the issuance of the policy the car was stolen, and upon proof of loss the company paid Quinn the amount of his policy. Later Quinn thought that he recognized this car upon the streets of St. Joseph, and called upon the insurance agent, Stubbs, to get the number of the car, but, not getting Stubbs, Quinn called up the police department and informed them that he thought he had found the stolen car and requested that officers be sent to look after the matter. The department sent two officers, who secreted themselves and were watching the car.

Upon Stubb's return to the office and upon learning of Quinn's telephone message as to the car and Quinn's desire for the number of the car, Stubbs called up the chief of police, and asked if Quinn had notified him about the stolen car, and was informed that Quinn had notified him and that men (police) had been sent out to look after it. The foregoing, in our language, are facts from the Court of Appeals opinion. From this point, however, the opinion of the Court of Appeals had better speak:

"Stubbs then called up Quinn and asked what had been done in regard to the matter, and when told by Quinn that he had notified the police department and that officers were already there watching the car Stubbs said, `That is fine,' or words to that effect

"Stubbs then went to Quinn and asked him if he would swear that the car standing in Felix street was his car that had been stolen. Quinn replied that he could not so swear, because he was not positive, and that he did not know the number of the stolen car. Stubbs, at the time, had the number of the stolen car on a piece of paper.

"Stubbs then went over to the place where Officer Reynolds was standing guarding the ear. Officer Reynolds testified that he was there watching the car to take it to the police station and pick up the party who claimed to own it, when the latter came to get the car. Stubbs then told the officer that if he would take care of the car he (Stubbs) would `fix it up with him and give him a Christmas present.' Stubbs then started to make an examination for the purpose of comparing engine and factory numbers of the stolen car with those of the suspected car, when Reynolds advised that he had better not do it, and that he had better not be seen there, as his presence might frighten away the person who had left the car. Thereupon Stubbs left and returned to his place of business, without having made any further suggestions. The arrest and incarceration of plaintiff followed, as above detailed."

Hines sued and recovered judgment for $880, and this judgment the Court of Appeals affirmed. Hines was admittedly falsely imprisoned. His arrest was aft Stubbs had left the scene of action by direction of the policeman. The insurance company could not be liable, save through the acts of Stubbs, and the acts of Stubbs fully appear from the foregoing. The Court of Appeals, on these facts, ruled:

"We think that under the facts in this case as disclosed by the record, the connection of defendants with the arrest and imprisonment is sufficiently established to support the verdict and judgment, and further that defendants were chargeable with lack of due diligence in not having attempted to identify the car of plaintiff with the one that was stolen."

The word "defendants" in the foregoing excerpt from the opinion refers solely to the two relators here. Other defendants, originally sued, seem to have dropped out of the ease; the verdict of the jury being only against the relators in this present proceeding.

The question is: Does the foregoing ruling, upon the foregoing facts, contravene out rulings?

I. It is urged that the Court of Appeals refused to examine alleged errors assigned as to instructions. It is true that no word is found in the opinion upon...