Terry v. Reciprocal Exchange

• Decision Date: 03 February 1925
• Docket Number: No. 18738.,No. 18444.,18738.,18444.
• Citation: 268 S.W. 421
• Parties: TERRY v. RECIPROCAL EXCHANGE et al. (two cases).
• Court: Missouri Court of Appeals

268 S.W. 421

TERRY v. RECIPROCAL EXCHANGE et al. (two cases).

No. 18738.

No. 18444.

St. Louis Court of Appeals. Missouri.

February 3, 1925.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Interpleader suit by P. S. Terry against the Reciprocal Exchange, William H. Pilliard, and others. From the judgment, the Reciprocal Exchange and others and William H. Pilliard separately appeal. Affirmed.

Charles A. Routs, Harry C. Barker, and Thomas J. Cole, all of St. Louis, for appellant Pilliard.

Leahy, Saunders & Walther, of St. Louis, for other appellants.

Albert Miller, of St. Louis, and S. Terry, of Festus, for respondent.

BRUERE, C.

This is an interpleader suit in which the respondent, P. S. Terry, seeks to have the defendants interplead in order to determine to whom he shall be required to party a certain fund in his possession.

The facts are these: The defendants the Reciprocal Exchange, the National Fire Insurance Company, and the American Central Insurance Company by their policies of insurance insured the plant of the Twin City Ice & Creamery Company against loss and damage by fire. Each policy contained the usual provisions to be found in a standard form policy; the condition material on this appeal being as follows:

"If this company shall claim that the fire was caused by the act of negligence of any corporation, private or municipal, this company shall on payment of loss be subrogated to the extent of such payment to all rights of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment."

On the 6th day of October, 1915, and while said policies were in force, the said plant of the Twin City Ice & Creamery Company was destroyed by fire. The underwriters paid to the assured, as indemnity for the loss, the sum of $19,568.25. After the payment of said sum, the Twin City Ice & Creamery Company and the said insurance companies ascertained that the said fire was caused by a spark from a locomotive of the Mississippi River & Bonne Terre Railroad Company. Thereafter the Twin City Ice & Creamery Company and the said insurance companies employed P. S. Terry, the plaintiff, to bring suit against the Mississippi River & Bonne Terre Railroad Company to recover the damage caused by said fire, and agreed to pay plaintiff, as his attorney fee for prosecuting said suit, one-third of all moneys' recovered. Suit was brought by Mr. Terry in the name of the Twin City & Creamery Company against said tort-feasor for the sum of $35,533.56. It was agreed, however, that the said insurance companies were entitled to be subrogated to the rights of the assured to the extent of the sum paid under the policies, and that the Twin City & Creamery Company should represent said insurance companies in said suit, and should reimburse them, out of the moneys realized by said suit, to the extent of the indemnity paid the assured.

Upon trial of the suit against the Mississippi River & Bonne Terre Railroad Company the jury fixed the damages sustained at the sum of $12,000 and a judgment was entered against the said railroad company for said amount. An appeal was taken to the Supreme Court by the judgment debtor. While pending in said court the cause was compromised, with the consent of the insurance companies, for the sum of $6,000 which sum was paid to P. S. Terry, the plaintiff.

It appears from the correspondence between Mr. Terry and the insurance companies, relative to their acceptance of the offer of the railroad company of $6,000 as a compromise of said suit, that the insurance companies accepted said offer upon the condition that no part of said $6,000 should be paid to the Twin City Ice & Creamery Company, but that said sum, less the attorney fees, should be paid and prorated among the insurance companies.

It appears that, after the $6,000 was paid Mr. Terry, the defendants William H. Pilliard, John Hague, and the said insurance companies made claim thereto. Whereupon the plaintiff brought this interpleader suit, praying therein that the defendants be required to file their respective claims and interplead and have the same determined, and that the money paid into court by the plaintiff be distributed among said defendants according to their respective interests, and that the plaintiff recover his costs and a reasonable attorney's fee and expenses for the filing and prosecution of said suit. The defendants filed separate answers to the cause of action pleaded in plaintiff's petition. On the issue thus made the court decreed, at its May term, 1920, that the plaintiff was entitled to pay the money into court and be discharged with his costs, and order that the defendants interplead for the fund of $4,000, so paid in, and interest in the sum of $108.40 earned thereupon, and allowed plaintiff $300 out of said fund as an interpleader fee for his expenses, trouble, and services done and suffered in said cause. No motion for a new trial was filed during the term at which said judgment was rendered.

At the September term, 1920, of the circuit court of Jefferson county, Mo., the trial court proceeded to try the issues raised by the interpleas filed by the defendants.

The separate interpleas of the insurance companies alleged that the said underwriters had paid the Twin City Ice & Creamery Company for the loss by fire, occasioned by the fault of the railroad company; that the Twin City Ice & Creamery Company brought the suit against the said tort-feasor as trustee for said insurance companies; and that the insurance companies were entitled to the recovered in said suit under the doctrine of subrogation.

The defendant William H. Pilliard in his interplea averred that he was entitled to said fund by reason of an assignment duly made to him by the Twin City Ice & Creamery and John Hague; that the sum of $6,000 derived in settlement with the railroad company, together with the amount of insurance paid, was not sufficient to cover the loss sustained by the assured; that much of the property destroyed by fire, and for which judgment was recovered against railroad company, was not covered by insurance, and that this uninsured property exceeded in value the amount realized in the said settlement with said railroad company; that said insurance companies knew at all times of the litigation against the railroad company,. but did not avail themselves of any rights, which they may have had in said litigation, or in any way co-operate with said William H. Pilliard in obtaining judgment against the railroad company.

Inasmuch as no appeal was taken from the adverse judgment rendered in this case against the defendant John Hague, it will not be necessary to set forth the matters alleged in the interplea filed by said defendant.

To sustain their separate interpleas the insurance companies established the facts hereinbefore stated.

To sustain his interplea W. H. Pilliard testified that at the time of the fire he had a one-tenth interest in the Twin City Ice & Creamery Company; that the value of the property, belonging to said company, destroyed by the fire was $39,000 or $40,000; that he made a list of the property that was not covered by the policies of insurance (which list introduced in evidence); and that the value of the property on this list was $4,983.

Witness further testified that the Twin Ice & Creamery Company was a corporation, still in existence at the time of the that he and his family and Mr. Hague and family owned all the stock in said corporation at the time of the fire, and that Mr. Hague and his family sold all their stock to witness and his son...