Subscribers at Cas. Reciprocal Exch. v. Pub. Serv.

Decision Date02 March 1936
Docket NumberNo. 18495.,18495.
Citation91 S.W.2d 227
PartiesSUBSCRIBERS AT CASUALTY RECIPROCAL EXCHANGE BY BRUCE DODSON, ET AL., APPELLANT, v. KANSAS CITY PUBLIC SERVICE COMPANY, RESPONDENT.
CourtMissouri Court of Appeals

Appeal from Circuit Court of Jackson County. Hon. Daniel E. Bird, Judge.

AFFIRMED.

Ellison & Dabbs for appellant.

Charles L. Carr and Mont T. Prewitt for respondent.

REYNOLDS, J.

The plaintiff is a reciprocal insurance exchange. On October 24, 1930, it issued its policy of insurance with a $50 deductible clause to one of its members or subscribers, Raymond Teall, against damage by collision to a Stutz automobile owned by Teall.

On April 2, 1931, while said policy was in effect, said automobile was damaged by a collision with a street car claimed to have been negligently operated by defendant at the intersection of Thirtieth and Main Streets in Kansas City, Missouri. The amount of damage to the automobile is charged in the petition to have been $617.55. The plaintiff paid to Teall on account of such damage under the policy held by him the sum of $567.55.

On April 22, 1931, the plaintiff, after having paid said sum of $567.55 to the insured on account of damage to said automobile, notified the defendant that it claimed the right of subrogation under said contract of insurance and demanded payment of said sum from the defendant, which payment the defendant refused.

Thereafter, in September, 1931, the defendant, upon a consideration of $50, settled with Teall and took a release for all claims and rights of action under the policy.

Thereafter, on April 5, 1934, plaintiff instituted this suit against the defendant by filing the following petition against defendant in the circuit court of Jackson county at Kansas City (caption and signature omitted):

"Subscribers at Casualty Reciprocal Exchange is an interinsurance exchange organized and doing business under Article 11, Chapter 37, Revised Statutes of Missouri of 1929, and as such is and was at all times herein mentioned engaged in the business of insuring automobiles for its subscribers against damage to such automobiles from collision and other causes. Defendant, Kansas City Public Service Company, is a corporation organized under the laws of the State of Missouri, and is and was at all times herein mentioned engaged in the business of operating a street railway system in Kansas City, Missouri.

"Plaintiff further alleges that on October 24, 1930, it issued its Policy No. K-12495 to Raymond Teall, a subscriber at said Exchange, by the terms and conditions of which plaintiff insured and agreed to indemnify the said Raymond Teall against any and all loss and damage in excess of the sum of $50 resulting from collision and damage to a 1929 model Stutz Automobile, Motor No. 32016, and by the terms and conditions of said contract between the said Raymond Teall, owner of said Stutz Automobile, and the plaintiff, the plaintiff became and is subrogated to all rights, claims, demands, and causes of action against any third person liable for damage to said automobile upon payment of said damage to the said Raymond Teall by the plaintiff.

"Plaintiff further alleges that on or about April 2, 1931, while said Stutz Automobile was at or near the intersection of 30th Street and Main Street in Kansas City, Missouri, it was carelessly and negligently run into and struck by a street car owned, operated, and under control and management of the defendant, and as a direct result thereof said automobile was wrecked and damaged to the extent of $617.55; $567.55 of which damage was paid by plaintiff, and by virtue of payment of said sum by the plaintiff under its contract of insurance with the said Raymond Teall as hereinbefore alleged, plaintiff became and is subrogated to all the rights, claims, and demands and causes of action of the said Raymond Teall against the Kansas City Public Service Company accruing and arising from and by virtue of damage to said automobile as aforesaid.

"Plaintiff further alleges that the defendant's agents, servants and employees were careless and negligent in the operation and management of its street car in that the operator of said street car saw or by the exercise of ordinary care could have seen the Stutz Automobile upon and near said street car track, and in such close proximity thereto that it would be struck by said steet car in passing upon and along said track, and the said operator of defendant's street car knew or by the exercise of ordinary care could have known that said automobile was in a position of imminent peril and danger, and that the driver thereof was oblivious to said danger, or was in a position from which he could not extricate said automobile in time thereafter for the operator of defendant's street car by the exercise of ordinary care, with the appliances at hand, to have stopped said street car, or to have slackened the speed thereof and thereby safely avoided running into and striking said automobile and the damage to said automobile as hereinbefore alleged, all of which the agent and servant in charge of and operating defendant's street car negligently failed to do, and as a direct result of said negligence said automobile was wrecked and damaged as hereinbefore alleged.

"Plaintiff further alleges that on April 22, 1931, after it had expended said sum of $567.55 in repairing said automobile as a result of said damage the plaintiff notified the defendant of its claim and rights under said contract of insurance, and demanded payment of said sum from the defendant, which payment the defendant did and has refused.

"Wherefore, plaintiff prays judgment against defendant in the sum of five hundred sixty-seven dollars and fifty-five cents ($567.55)."

Thereafter, on May 31, 1934, the defendant filed its answer, which, omitting caption and signature, is as follows:

"Now comes the above named defendant, Kansas City Public Service Company and for its answer to the petition of plaintiff filed herein, denied each and every allegation in said petition contained except as herein expressly admitted.

"Further answering, plaintiff's petition, defendant states that Raymond Teall, a subscriber at said exchange, mentioned in plaintiff's petition, executed a full, final and complete release on September 16, 1932, for the sum of fifty dollars ($50.00) to the Kansas City Public Service Company, its successors and assigns, from all actions, claims, and demands whatsoever for or on account of injuries received to his person and damages caused to his property, or either of them, and all other damages and specially as to any injuries or damages received by Raymond E. Teall on or about the second day of April, 1931, at or near 30th and Main Streets, Kansas City, Missouri, which are more fully set forth in plaintiff's above petition, No. 428810.

"Defendant attaches to, and makes a part hereof of its answer, a true and correct copy of the release aforesaid, and in addition thereto, defendant pleads as part of its answer a check for fifty dollars ($50) paid Raymond E. Teall by the Kansas City Public Service Company on or about September 16, 1932, in connection with the release aforesaid, and defendant, Kansas City Public Service Company further states that said Raymond E. Teall did accept said check in full payment of said release and endorsed said check and received fifty dollars ($50) on account thereof. Defendant further states that a true and correct copy of this aforesaid mentioned check for fifty dollars is also attached hereto and made a part of this answer.

"Wherefore, defendant Kansas City Public Service Company, having fully answered, prays that it be dismissed with its costs."

A copy of the release mentioned in the answer was filed as an exhibit with said answer.

Thereafter, on January 21, 1935, the plaintiff filed reply, which is, omitting caption and signature, as follows:

"Plaintiff for its reply to defendant's answer filed herein admits that Raymond Teall, a subscriber at Casualty Reciprocal Exchange, executed a release to the defendant for the sum of $50 and that he received in consideration thereof the sum of $50 from the defendant, and that said release recites among other things that —

"`Know all men by these presents that Raymond E. Teall of 815 Huntington, Kansas City, Mo., for the sole consideration of the sum of Fifty and No/100 ($50.00) Dollars to him paid by the Kansas City Public Service Company, the receipt of which is hereby acknowledged, do hereby release and forever discharge the Kansas City Public Service Company, its successors and assigns from all actions, claims and demands, whatsoever for or on account of injuries received to the person and/or damages caused to the property of the signer or signers hereof, or either of them and all other damages, and especially on or about the 2nd day of April, 1931, on the Independence Ave. line near 30th and Main, Kansas City, Mo.

"`It is expressly understood and agreed that said sum of Fifty and No/100 ($50.00) Dollars is full satisfaction of all damages sustained and is the sole consideration of this release and the consideration stated herein is contractual and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein.'

"Plaintiff alleges, however, that prior to the said release by the said Raymond Teall and the payment of said sum of $50 by the defendant to the said Raymond Teall the plaintiff had notified the defendant of the fact that it was subrogated to all of the rights of the said Raymond Teall against the defendant for damage to the automobile owned by the said Raymond Teall in excess of the amount of $50, and was the owner of and had an interest in said property damage claim as alleged in plaintiff's petition, and defendant had recognized and admitted the existence of plaintiff's said interest by negotiating with the plaintiff for settlement of said claim.

"Plaintiff further alleges...

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