Taverno v. American Auto Ins. Co. et al.

• Decision Date: 11 February 1938
• Docket Number: No. 18988.,18988.
• Citation: 112 S.W.2d 941
• Parties: BENJAMIN TAVERNO, JR., APPELLANT, v. AMERICAN AUTO INSURANCE CO. ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

112 S.W.2d 941

BENJAMIN TAVERNO, JR., APPELLANT, v. AMERICAN AUTO INSURANCE CO. ET AL., RESPONDENTS.

No. 18988.

Kansas City Court of Appeals. Missouri.

February 11, 1938.

Appeal from the Circuit Court of Jackson County. — Hon. A.A. Ridge, Judge.

AFFIRMED.

Robert L. Holder for appellant.

Harding, Murphy & Tucker for respondents.

SHAIN, P.J.

This case is before us for review on an appeal from the action of the trial court in sustaining a demurrer to plaintiff's petition and entering judgment for defendants.

The first paragraph of plaintiff's petition describes both parties, plaintiff and defendants, and alleges that defendants Pierson and Garver acted in all matters declared upon as the agent of the Auto Insurance company.

In paragraph No. 2, plaintiff alleges issuance of policy of insurance by the defendant company to one R. Richard Fitzgerald whereby under the terms of the policy it held the said Fitzgerald harmless against claim or judgment for liability for his negligence, or violation of law in the operation of his automobile, and agreed to defend him in any action brought, and agreed to pay any claim or judgment. The company further reserved the right to settle or compromise any claim or cause of action against him, all under the terms of the policy while same was in full force and effect.

The third paragraph of plaintiff's petition is as follows:

"Plaintiff states that on the said February 15th, 1936, a meritorious claim and cause of action accrued to him against the said R. Richard Fitzgerald by reason of the said R. Richard Fitzgerald's negligent and unlawful operation of his said Cadillac automobile as hereinafter set out, and which claim and cause of action defendant American Auto Insurance Company was, by its said policy, bound to pay and defend."

Following paragraph No. 3, the plaintiff pleads facts of negligence on the part of Fitzgerald resulting in injury to a car owned by plaintiff. In other words plaintiff pleads a good cause of action as against Fitzgerald.

Plaintiff in paragraphs No. 7, 8, 9, and 10 of his petition states that Fitzgerald told him that he (Fitzgerald) was at fault and that he was insured by the defendant, American Auto Insurance Company, and that he would report the accident and that said company would pay the damages. Further, it is plead that said Fitzgerald did report the accident to each of the defendants. Further, plaintiff alleges the nature, extent and amount of damages claimed.

After the above narration of alleged facts and circumstances, the plaintiff pleads against all defendants as follows:

"Plaintiff for his cause of action against the defendants states that on or about the 17th day of February, 1936, and after notice from said R. Richard Fitzgerald of the said collision, defendant C. William Garver, representing himself and the other defendants here, came to plaintiff and inquired the amount of plaintiff's damage, and upon being informed that the exact amount had not at that time as yet been ascertained, untruthfully and fraudulently told plaintiff that an adjuster from defendants American Auto Insurance Company and Robert J. Pierson Agency would call upon plaintiff the next or second day following and that defendants would compensate plaintiff for his damage.

"Plaintiff states that defendant C. William Garver, so acting for himself and for the other defendants did not intend to pay plaintiff nor to have an adjuster call upon plaintiff, and told plaintiff those things to induce him to withhold suit and action and attachment against said R. Richard Fitzgerald.

"Plaintiff states that on or about the 17th day of February, 1936, defendant American Auto Insurance Company, its agents, servants and employees, and defendants Robert J. Pierson Agency and C. William Garver fraudulently advised, aided and abetted said insured, R. Richard Fitzgerald to abscond and go away so that the service of process could not be made upon him; and the said R. Richard Fitzgerald, acting upon the advice of, and with the aid and abetting of these defendants and each of them did abscond and hide himself so that the ordinary process of law could not be made upon him, and the said R. Richard Fitzgerald at the advice, and with the aid of these defendants and each of them, fraudulently removed all of his assets from the United States so that plaintiff could not obtain service of the process of law, or cause to be levied an attachment against the said R. Richard Fitzgerald.

"Plaintiff states that on the said 17th day of February, 1936, when defendant C. William Garver agreed to pay plaintiff, well knew that R. Richard Fitzgerald would fraudulently conceal his property and assets to hinder and delay his creditors and especially this plaintiff, and that he would fraudulently conceal himself so that the ordinary process of law could not be served upon him, but with such knowledge defendants and each of them fraudulently induced this plaintiff to withhold legal proceedings against said R. Richard Fitzgerald, and promised to pay plaintiff.

"Plaintiff states that the acts above set forth were done fraudulently and with intent to deceive this plaintiff and to induce plaintiff to withhold action against said Fitzgerald and plaintiff relied upon and was induced to withhold action against said R. Richard Fitzgerald.

"Plaintiff states that after said fraudulent and false actions and representations of defendants above set forth, defendants, being aware of their liability for said damages to plaintiff told plaintiff that they would pay plaintiff the amount of his damage if he could obtain service of process upon said R. Richard Fitzgerald, and told plaintiff that said Fitzgerald had moved permanently to Europe.

"Plaintiff states that the acts of defendants in inducing plaintiff to withhold suit and attachment against R. Richard Fitzgerald, and in advising, aiding and abetting said Fitzgerald to abscond and conceal his property have deprived plaintiff of any remedy against said R. Richard Fitzgerald; and were done with the intent to relieve defendant American Auto Insurance Company of its obligation upon its said policy of Insurance.

"Plaintiff states that by reason of the false and fraudulent representations and actions of these defendants and each of them he has been actually damaged in the sum of Two Hundred Fifty Dollars and that he has made demand of and from defendants but that they have failed and refused to pay any part of said demand.

"Plaintiff states that all of the above fraudulent and false actions of defendants were willful and malicious and done with the intent to maliciously deprive plaintiff of his rights and that he is entitled to exemplary damages in the sum of Five Hundred and Twenty-Five Dollars as a penalty therefor."

Defendants file demurrer to plaintiff's petition alleging that no cause of action is stated against either of the defendants.

Upon court sustaining the demurrer and plaintiff refusing to plead...