OPINION
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 street 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...