Suburban Service Bus Co. v. Nat. Mut. Cas. Co.

• Decision Date: 14 November 1944
• Docket Number: No. 26674.,26674.
• Citation: 183 S.W.2d 376
• Parties: SUBURBAN SERVICE BUS COMPANY, RESPONDENT, v. THE NATIONAL MUTUAL CASUALTY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

183 S.W.2d 376

SUBURBAN SERVICE BUS COMPANY, RESPONDENT, v. THE NATIONAL MUTUAL CASUALTY COMPANY, APPELLANT.

No. 26674.

St. Louis Court of Appeals. Missouri.

Opinion filed November 14, 1944.

Respondent's motion for rehearing overruled December 5, 1944.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Wm. S. Conner, Judge.

REVERSED AND REMANDED (with directions if remittitur be made; otherwise reversed and remanded for a new trial).

Joseph N. Hassett and Ernest E. Baker for appellant.

(1) The injury to Mary Honor Killoren did not arise out of the ownership, maintenance, or use of the bus and was not covered by the policy of insurance in question, and it was not defendant's duty to defend the action or pay the judgment rendered on account thereof. Baron v. Automobile Mut. Indem. Co., 285 N.Y.S. 486, 247 App. Div. 731; Zurich General Acc. Co. v. Am. Mut. Liab. Assur. Co., 118 N.J. Law 317, 192 Atl. 387; Handley v. Oakley (Wash.), 116 Pac. (2d) 833; Kienstra v. Madison Mutual (Ill. App.), 44 N.E. 944; Morgan v. N.Y. Cas. Co., 54 Ga. App. 620, 188 S.E. 581; Luchte v. State Automobile Mut. L. Ins. Co., 50 Ohio App. 5, 197 N.E. 421; Caron v. Am. Motorist Ins. Co., 178 N.E. 286; Ocean Acc. & Guar. Corp. v. J.B. Pound Hotel Co., 69 Ga. App. 447, 26 S.E. (2d) 116; U.S. Fid. & Guar. Corp. v. Breslin, 243 Ky. 734, 49 S.W. (2d) 1011; J.T. Hinton & Son v. Employers Liab. Assur. Corp. (Tenn.), 62 S.W. (2d) 47; Hill v. New Amsterdam Casualty Co., 208 N.Y. Supp. 235, 211 App. Div. 747. (2) There was no showing that defendant acted in bad faith in denying its liability under the policy, and it was error to submit this issue to the jury. State ex rel. Mo. State Life v. Allen (Mo.), 243 S.W. 839, 843; Stahl v. Am. Nat. Assurance Co. (Mo. App.), 70 S.W. (2d) 78, 81.

Edwin A. Smith for respondent.

(1) The injury to Mary Honor Killoren did arise out of the ownership, maintenance, or use of the bus and was covered by the policy of insurance in question, and it was defendant's duty to defend the action and pay the judgment rendered on account thereof, plus interest, court costs, attorney's fees and parent's release. State ex rel. Mills Lbr. Co. v. Trimble, 327 Mo. 899, 39 S.W. (2d) 355; Ga. Cas. Co. v. Alden Mills, 127 So. 555; Comm. Cas. Ins. Co. v. Tri-State Transit Co. of La., 1 So. (2d) 221; Am. Cas. Co. v. So. Stages et al., 27 S.E. (2d) 227; Sec. 5729, R.S. Mo. (1939), Ann., p. 286; U.S.F. & G. Co. v. Breslin, 49 S.W. (2d) 1011; Quality Dairy Co. v. Ft. Dearborn Cas. Underwriters, 16 S.W. (2d) 613; Panhandle Steel Products Co. v. Fid. Union Cas. Co., 23 S.W. (2d) 799; Hocken v. Allstate Ins. Co. et al., 147 S.W. (2d) 182; Merchants Co. et al. v. Hartford Acc. & Indem. Co. et al., 188 So. 571; Mullen v. Hartford Acc. & Indem. Co., 191 N.E. 394, 287 Mass. 262, (2) There was ample showing that defendant acted in bad faith in denying liability under the policy, and it was not error to submit this issue to the jury. Appellant's appeal is likewise vexatious. Sec. 6040, R.S. Mo. (1939), Ann., p. 778; Evens v. Great Northern Life Ins. Co., 167 S.W. (2d) 118; Lemay Ferry Bank v. New Amsterdam Casualty Co., 347 Mo. 793, 802, 149 S.W. (2d) 328, 331; Thomas v. Met. Life Ins. Co., 89 S.W. (2d) 590; Reed v. Prudential Ins. Co., 73 S.W. (2d) 1027; Porter v. Equitable Life Assur. Soc. of United States, 71 S.W. (2d) 766; National Battery Co. v. Standard Acc. Ins. Co., 41 S.W. (2d) 599; Stewart v. North Am. Acc. Ins. Co., 33 S.W. (2d) 1005; Hampe, Public Admr., v. Met. Life Ins. Co., 21 S.W. (2d) 926; State ex rel. and to Use of City of Maplewood v. So. Surety Co., 19 S.W. (2d) 691; Sec. 1230, R.S. Mo. (1939), Ann., p. 370; Foster v. Aetna Life Ins. Co. of Hartford, Conn., 169 S.W. (2d) 423.

SUTTON, C.

This is an action on a liability insurance policy issued to plaintiff by defendant, covering on a bus owned by plaintiff and used in transporting school children, whereby defendant agrees with the insured to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury sustained by any person or persons, caused by accident and arising out of the ownership, maintenance, or use of the bus.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $1753.70 for loss sustained and $69.45 as interest, $182.32 for damages for vexatious refusal to pay the loss, and $500 for attorney's fees, aggregating $2505.47. Judgment was given accordingly, and defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence. The assignment is put on the ground that the injury did not arise out of the ownership, maintenance, or use of the bus, and is therefore not within the coverage of the policy.

It is undisputed that a judgment for $1400 was obtained by Mary Honor Killoren against the Suburban Service Bus Company as damages for injury to her while a passenger on the bus, and for $53 as costs; that the Bus Company paid $1453 in satisfaction of said judgment, and also paid $200 to its attorney for services in said suit, and $100 to the parents of Mary Honor Killoren, in settlement of their claim for damages.

Mary Honor Killoren was injured on April 21, 1941, while riding as a passenger in the insured bus. The Bus Company had established routes to the Ursuline Academy, in Kirkwood, St. Louis County, taking school girls to and from school. The bus in which Mary Honor Killoren was riding when she was injured was transporting school children from the school to their homes. Daniel Brummel was driving the bus.

Mr. Roessel, a representative of defendant National Mutual Casualty Company, interviewed Daniel Brummel a few days after the accident occurred. He took a statement from Mr. Brummel, which was reduced to writing and signed by him. The statement, which was introduced in evidence without objection, contains the following: "For the past several days prior to this accident a couple of girls who ride my bus, which is on the Ursuline Convent run, have been using water guns to squirt each other and myself and I have warned them several times. On Monday, April 21, 1941, I had left the school to take the children home. I had been driving about twenty minutes and twice in that time I had told these girls to stop using these water guns as I was afraid I might lose control of the bus and cause a serious accident. However, they did not do so and frequently these jets of water struck me. I stopped the bus and took the fire-extinguisher, intending to scare them. I did not realize by lifting the fire extinguisher and turning it up that it would start to operate. My intent was only to scare them into behaving. However, it started to operate and some of the liquid struck a girl in the face. I believe some more got on the dress of another girl. I took Mary Honor Killoren to Dr. D.S. Werth, 124 E. Adams in Kirkwood, who treated her eyes and then I took her home. I paid this doctor $2 for the treatment."

Le Roy A. Waring testified that he was the secretary and treasurer of the Bus Company, and was very active in the management of the company; that he was present when Mr. Roessel came out and interviewed Mr. Brummel; that Mr. Brummel told Mr. Roessel that the bus had been stopped and was standing still at the time of the accident; that Mr. Brummel had taken a fire extinguisher for the purpose of scaring the girls on the bus; that the girls had been shooting or using water guns or something on him, and he took down the fire extinguisher so as to stop them, to scare them into it; that Mr. Brummel stated that some of the liquid out of the fire extinguisher struck one of the girls while he still had it in his hands; that Mr. Brummel made a very lengthy statement to Mr. Roessel; that he stated that he picked the girls up at Ursuline Academy; that he had driven from fifteen to twenty minutes from the Ursuline Academy when the girls had been shooting their water guns, squiritng water on themselves, on him, and on the windshield; that it got to such a point at that place that he stopped and pulled up alongside the road, because, in view of the safe operation of the bus, he was afraid he would cause an accident, and he got the fire extinguisher and pointed it back in an...