State v. Martin

• Decision Date: 01 April 1940
• Docket Number: No. 19643.,19643.
• Citation: 141 S.W.2d 186
• Parties: STATE ex rel. HOWARD v. MARTIN, Judge.
• Court: Missouri Court of Appeals

141 S.W.2d 186

STATE ex rel. HOWARD v. MARTIN, Judge.

No. 19643.

Kansas City Court of Appeals. Missouri.

April 1, 1940.

Rehearing Denied May 20, 1940.

Original proceedings in prohibition by the State of Missouri, at the relation of Mrs. E. M. George Howard, in her individual capacity and as administratrix of the estate of C. H. Howard, deceased, against Honorable Thomas W. Martin, Judge of the Circuit Court of Vernon County, Mo.

Preliminary rule discharged, and permanent writ denied.

B. C. Howard, of Kansas City, for relator.

Ewing, Ewing & Ewing, of Nevada, for respondent.

CAMPBELL, Commissioner.

Bruce Dodson, attorney in fact for Subscribers at Casualty Exchange, and Bruce Dodson and Ralph Dodson, doing business as Bruce Dodson and Company, hereinafter called insurers, brought suit against C. H. Howard and E. M. George Howard, hereinafter referred to as the Howards, Clay Kelley, hereinafter designated employee, and Wooddy Swearingen, in the circuit court of Vernon County on January 14, 1939.

The second amended petition (the petition here involved) of the insurers alleged that on November 30, 1937, the Workmen's Compensation Commission, in a proceeding then pending before it, in which the employee was claimant and the Howards and insurers were defendants, made an award of compensation in favor of the employee as against the Howards in the amount of $2,035.33 and denied compensation as against the insurers; that employee and the Howards appealed from said award to the circuit court of Vernon County, which latter court affirmed the award. Whereupon the Howards alone appealed to the Kansas City Court of Appeals; that the judgment appealed from was reversed and the cause remanded with direction to modify the award adjudging the insurers primarily liable and the Howards secondarily liable; that, thereafter, on March 20, 1939, the circuit court rendered judgment in accordance with the aforesaid direction; that on March 16, 1938, said award was paid in full to the employee by Wooddy Swearingen "with funds of, and, on behalf of, the Howards", and that the employee then and there purported to assign said award to Swearingen.

The petition further alleged the clerk of the circuit court of Vernon County, at the request of Swearingen, has issued execution on said judgment directed to the sheriff of Jackson County, Missouri; that said sheriff has served said execution upon the Commerce Trust Company and attempted to attach the bank account of the insurers in said Trust Company.

The petition further charged the judgment was void, because it has been paid; because Swearingen acquired no title to the judgment under the purported assignment thereof; because the judgment was paid on behalf of, and with the funds of, the Howards; that execution could not be legally issued at the request of either Swearingen or the employee.

The prayer was for a temporary stay of proceedings under the execution and garnishment pending the action; to determine and declare whether the judgment was valid, and for such further relief as the court deemed proper.

The second count of the petition alleged that insurers on August 1, 1936, issued to C. H. Howard, doing business as Nevada Baking Company, a contract of insurance, which, by its terms, insured the Howards against loss sustained by them on account of injury sustained by any of their employees in consideration of an "advance deposit" upon the estimated annual premium for such contract; that said insurance terminated on November 3, 1936, because of the nonpayment of the required premium; that one of the Howards, on December 11, 1936, called at the office of the insurers for the purpose of obtaining reinstatement of the policy; that insurers then stated to the said Howard that they would not reinstate said policy if any of the employees of the Howards had suffered an accident subsequent to November 3, 1936; that the said Howard falsely and fraudulently stated to insurers that no employee of the Howards had received injury subsequent to November 3, 1936, when in fact said Howard knew that one of said employees (Clay Kelley) had, on December 10, 1936, sustained a serious injury while at work in the bakery of the Howards, and that such representations were made for the purpose of obtaining reinstatement of the policy; that insurers relied upon said statement, accepted the sum of $51.30, and that said amount was brought into court and tendered to the Howards. The second count further alleged the filing of the claim for compensation, the prosecution and the result thereof, the same as such facts were alleged in the first count. The prayer of the second count was substantially the same as the prayer in the first count.

In May, 1939, each defendant filed demurrer to both counts of said petition, based upon the grounds that the petition did not state facts sufficient to constitute a cause of action. The demurrers were overruled and each defendant granted leave to plead on or before September 1, 1939. In June, 1939, the death of C. H. Howard (one of the Howards) was suggested and the cause was revived in the name of his administratrix, E. M. George Howard.

The relator on September 1, 1939, brought the instant proceeding in prohibition, in which it sought to have respondent prohibited from exercising further jurisdiction of the action brought by...